Klimek v. Town of Ghent, 114 A.D.2d 614 (N.Y. App. Div. 1985). · Go Syfert
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Klimek v. Town of Ghent, 114 A.D.2d 614 (N.Y. App. Div. 1985). Cases Citing This Book View Copy Cite
57 citation events (3 in the last 25 years) across 4 distinct courts.
Strongest positive: O'Brien v. City of Schenectady (nyappdiv, 2006-02-16)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) O'Brien v. City of Schenectady
N.Y. App. Div. · 2006 · confidence medium
The cases relied upon by plaintiffs in which a municipality is deemed to have notice of a dangerous condition that it created and either maintained or actively caused to further deteriorate over time (see Muszynski v City of Buffalo, 29 NY2d 810 [1971], affg on op below 33 AD2d 648, 648 [1969]; Taylor v City of Albany, 264 NY 539 [1934], affg 239 App Div 217, 219 [1933]; Klimek v Town of Ghent, 114 AD2d 614, 615-616 [1985]; see also Filsno v City of Rochester, 10 AD2d 663, 663 [1960]) are distinguishable, inasmuch as here the burying of the tree did not initially create a dangerous condition.
discussed Cited as authority (rule) Ferris v. County of Suffolk (2×)
N.Y. App. Div. · 1992 · confidence medium
In denying the Town’s motion for summary judgment, the Supreme Court relied on a narrow exception to the statutory prior written notice requirement that "when a municipality has or should have knowledge of a defective or dangerous condition because it either has inspected or is performing work upon the subject area shortly before the accident, an exception to statutory prior written notice requirements may exist” (Klimek v Town of Ghent, 114 AD2d 614, 615 [emphasis added]; see also, Kirschner v Town of Woodstock, 146 AD2d 965, 967 ; Holt v County of Tioga, 95 AD2d 934, 936 ; Blake v City o…
discussed Cited as authority (rule) Du Pont v. Town of Horseheads
N.Y. App. Div. · 1990 · confidence medium
The issue therefore distills to whether the papers opposing the town’s motion adequately presented a triable issue of fact as to whether the town was guilty of an affirmative act of negligence for which it could be held liable even absent prior written notice (Klimek v Town of Ghent, supra, at 615-616).
discussed Cited as authority (rule) Stapleton v. City of Troy
N.Y. App. Div. · 1988 · confidence medium
Plaintiffs have offered evidence of several triable issues of fact including that of an affirmative act which allegedly created the defect that caused plaintiff to fall, triggering the application of the exception to the prior written notice requirement (see, Klimek v Town of Ghent, supra, at 615).
discussed Cited "see" Berner v. Town of Huntington
N.Y. Sup. Ct. · 2002 · signal: see · confidence high
See Ferris v County of Suffolk, 174 AD2d 70, 73 (2d Dept 1992), citing Klimek v Town of Ghent, 114 AD2d 614, 615 ; Kirschner v Town of Woodstock, 146 AD2d 965, 967 ; Holt v County of Tioga, 95 AD2d 934, 936 ; Blake v City of Albany, 63 AD2d 1075 , affd 48 NY2d 875 . .
discussed Cited "see" Akley v. Clemons
N.Y. App. Div. · 1997 · signal: see · confidence high
Although plaintiffs assert that they are excused from compliance because the Town had actual or constructive notice of the allegedly dangerous condition, their proof falls short of showing " 'not only that the defect at issue was readily apparent * * * but also that the municipality had, shortly before the accident, either inspected the subject area for the purpose of discovering such defects or performed work thereon’ ” (Krach v Town of Nassau, 217 AD2d 737 [citation omitted], quoting Jackson v City of Mount Vernon, 213 AD2d 892, 892-893 , lv denied 85 NY2d 812 ; see, Klimek v Town of Ghe…
discussed Cited "see" Krach v. Town of Nassau
N.Y. App. Div. · 1995 · signal: see · confidence high
This Court recognizes that a lack of statutorily mandated prior written notice will be excused if the injured party shows "not only that the defect at issue was readily apparent * * * but also that the municipality had, shortly before the accident, either inspected the subject area for the purpose of discovering such defects or performed work thereon” (Jackson v City of Mount Vernon, 213 AD2d 892 -893 [citation omitted]; see, Klimek v Town of Ghent, 114 AD2d 614, 615 ; Blake v City of Albany, 63 AD2d 1075 , affd 48 NY2d 875 ).
discussed Cited "see" Kiernan v. Thompson
N.Y. App. Div. · 1987 · signal: see · confidence high
They are inapplicable in some circumstances, including, among others, situations where the municipality has itself precipitated the accident by its own affirmative act (Haviland v Smith, 91 AD2d 764 ; see, Klimek v Town of Ghent, 114 AD2d 614 ) or where the defective condition constitutes a special use of the sidewalk or street.” Supreme Court, in reaching its decision in the case at bar, relied on Klein v City of Yonkers ( 53 NY2d 1011 ), where the plaintiff sought damages for destruction by fire of a building he purchased in 1969 in reliance on a certificate of occupancy negligently and fr…
discussed Cited "see" Rehfuss v. City of Albany
N.Y. App. Div. · 1986 · signal: see · confidence high
They are inapplicable in some circumstances, including, among others, situations where the municipality has itself precipitated the accident by its own affirmative act (Haviland v Smith, 91 AD2d 764 ; see, Klimek v Town of Ghent, 114 AD2d 614 ) or where the defective condition constitutes a special use of the sidewalk or street.
discussed Cited "see, e.g." Bergamini v. Town of Babylon
N.Y. App. Div. · 1993 · signal: see also · confidence low
In light of this documentary evidence, the Supreme Court acted properly in striking the affirmative defenses asserting the purported failure to provide prior written notice of the allegedly defective condition (see, Giganti v Town of Hempstead, 186 AD2d 627 ; see also, Klimek v Town of Ghent, 114 AD2d 614, 615 ; Blake v City of Albany, 63 AD2d 1075 , affd 48 NY2d 875 ; cf., CPLR 3212 [b], [e]).
discussed Cited "see, e.g." Dobransky v. City of Watertown
N.Y. App. Div. · 1990 · signal: see also · confidence low
That requirement, however, can be avoided if it is shown that the city created the dangerous condition (see, Muszynski v City of Buffalo, 33 AD2d 648 , affd on opn below 29 NY2d 810 ), or where unusual circumstances prevail (see, Blake v City of Albany, 63 AD2d 1075 , affd on other grounds 48 NY2d 875 [where the area in question was inspected on almost a daily basis by the city to ensure against the very danger that caused the accident]; see also, Klimek v Town of Ghent, 114 AD2d 614 ).
Retrieving the full opinion text from the archive…
Charles F. Klimek, Individually and as Father and Natural Guardian of Peter E. Klimek, an Infant
v.
Town of Ghent, and County of Columbia
Appellate Division of the Supreme Court of the State of New York.
Oct 17, 1985.
114 A.D.2d 614
1985 N.Y. App. Div. LEXIS 53307
Weiss.
Cited by 43 opinions  |  Published
Weiss, J.

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered November 29, 1984 in Columbia County, which denied defendant[*615] Town of Ghent’s motion for summary judgment dismissing the complaint against it.

The facts in this case are set forth in Klimek v Town of Ghent (71 AD2d 359), where we denied plaintiffs motion to dismiss the affirmative defense of lack of compliance with Local Law, 1976, No. 1 of Town of Ghent (requirement for prior written notice of condition complained of) and held the local law to be constitutional. The case is before us again on this appeal by defendant Town of Ghent from Special Term’s denial of its motion for summary judgment dismissing the complaint because it had not received the written notice required by said Local Law No. 1. Briefly, plaintiff commenced this action against the town and other defendants to recover damages for personal injuries sustained by his then infant son on July 19, 1978, when a tractor operated by the infant on a town road allegedly ran onto the shoulder striking first a culvert, then a tree, and went down an embankment. The complaint alleges that the town was negligent in designing, creating, constructing, establishing, repairing, reconstructing and maintaining the road, shoulder, drainage system and appurtenances thereto.

Plaintiff does not contend that he ever gave the prior written notice, but both he and the other defendants urge distinct grounds to support Special Term’s denial of the town’s motion. The Town Superintendent of Highways testified at his deposition that no records of notices were kept by him or his predecessors prior to 1980, thus creating a factual issue as to whether any written notice was received.* Moreover, when a municipality has or should have knowledge of a defective or dangerous condition because it either has inspected or is performing work upon the subject area shortly before the accident, an exception to statutory prior written notice requirements may exist (see, Holt v County of Tioga, 95 AD2d 934, 936, appeal dismissed 60 NY2d 701; see also, Blake v City of Albany, 63 AD2d 1075, affd 48 NY2d 875). Here, evidence obtained in pretrial disclosure created a triable issue of fact as to whether town employees may have inspected the road shortly before the accident, thereby triggering the exception found in Blake v City of Albany (supra). Finally, plaintiff’s opposing papers adequately presented a triable issue of fact as[*616] to whether the town was guilty of negligence in constructing the culvert, an affirmative act of negligence for which it could be held liable even absent prior written notice (see, Haviland v Smith, 91 AD2d 764). Since the drastic remedy of summary judgment should be denied if material issues of fact either exist or even arguably exist, we cannot say that Special Term erred (see, Bershaw v Altman, 100 AD2d 642, 643).

Of the town’s remaining arguments, only one requires comment. The town contends that even if it was negligent in the original installation of the culvert, such negligence was not the proximate cause of the accident and resultant injuries. The record contains proof that the installation may have been negligent and caused eventual collapse of the road shoulder. This evidence was sufficient to create a triable issue of fact as to whether such negligence was the proximate cause of the accident. We find Tomassi v Town of Union (46 NY2d 91), upon which the town heavily relies, to be inapposite. That case involved a two-car collision resulting in one car being propelled off the roadway into an adjacent drainage ditch. In the one-vehicle accident in the instant case, it is alleged that the negligent construction of the culvert by the town caused erosion of the road shoulders which in turn caused the accident. A municipality which provides a shoulder along a roadway must maintain that shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence (Bottalico v State of New York, 59 NY2d 302, 304; Sevilla v State of New York, 111 AD2d 1046).

Order affirmed, with one bill of costs. Kane, J. P., Main, Weiss, Yesawich, Jr., and Levine, JJ., concur.

Local Law No. 1 provides that notice of defective or unsafe conditions shall be given to the Town Clerk or the Town Superintendent of Highways. The Superintendent shall forward notices received by him to the Town Clerk within five days. The Town Clerk shall keep accurate records of all notices received.