McAllen v. City of New York

Appellate Division of the Supreme Court of New York

McAllen v. City of New York

270 A.D.2d 43, 704 N.Y.S.2d 48, 2000 N.Y. App. Div. LEXIS 2562

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 7, 2000

StatusPublished

Cited by2 cases

This text of 270 A.D.2d 43 (McAllen v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McAllen v. City of New York, 270 A.D.2d 43, 704 N.Y.S.2d 48, 2000 N.Y. App. Div. LEXIS 2562 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered March 26, 1999, brought up for review pursuant to CPLR 5517 (b) by appeal from order of same court and Justice entered December 10, 1998, which in an action for personal injuries sustained in a trip and fall caused by a roadway defect, insofar as appeal-able, denied defendant-appellant City’s motion to renew a prior order, entered December 10, 1998, denying its motion to vacate [44]*44a prior order, entered September 2, 1998 on default, striking its answer for noncompliance with its disclosure obligations, unanimously affirmed, without costs.

The City’s defense — that it contracted out to other entities the responsibility for site safety — lacks merit, and, accordingly, the September 2, 1998 order striking the City’s answer on default should not be vacated (see, Mitrany v American Tit. Ins. Co., 238 AD2d 179). A municipality has “a nondelegable duty to maintain its roads * * * in a reasonably safe condition,” and will be liable for a breach of that duty “even if the dangerous condition of the road, which caused the injury, is created by an independent contractor” (Lopes v Rostad, 45 NY2d 617, 623). We note that the City does not challenge plaintiff’s claim that a hazardous condition existed or maintain that plaintiff was negligent. Concur — Nardelli, J. P., Williams, Ellerin and Wallach, JJ.

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—Order, Supreme Court, New York County (Louis York, J.), entered March 26, 1999, brought up for review pursuant to CPLR 5517 (b) by appeal from order of same court and Justice entered December 10, 1998, which in an action for personal injuries sustained in a trip and fall caused by a roadway defect, insofar as appeal-able, denied defendant-appellant City’s motion to renew a prior order, entered December 10, 1998, denying its motion to vacate [44]*44a prior order, entered September 2, 1998 on default, striking its answer for noncompliance with its disclosure obligations, unanimously affirmed, without costs.

The City’s defense — that it contracted out to other entities the responsibility for site safety — lacks merit, and, accordingly, the September 2, 1998 order striking the City’s answer on default should not be vacated (see, Mitrany v American Tit. Ins. Co., 238 AD2d 179). A municipality has “a nondelegable duty to maintain its roads * * * in a reasonably safe condition,” and will be liable for a breach of that duty “even if the dangerous condition of the road, which caused the injury, is created by an independent contractor” (Lopes v Rostad, 45 NY2d 617, 623). We note that the City does not challenge plaintiff’s claim that a hazardous condition existed or maintain that plaintiff was negligent. Concur — Nardelli, J. P., Williams, Ellerin and Wallach, JJ.

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Bluebook (online)

270 A.D.2d 43, 704 N.Y.S.2d 48, 2000 N.Y. App. Div. LEXIS 2562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcallen-v-city-of-new-york-nyappdiv-2000.

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