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KATHY McALLEN, Plaintiff-Respondent, v. THE CITY OF NEW YORK, Defendant-Appellant, and LIRO CONSULTING ENGINEERS, P.C., et al., Defendants.

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 Title Ins. Co., 238 A.D.2d 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 N.Y.2d 617, 623). We note that the City does not challenge plaintiff's claim that a hazardous condition existed or maintain that plaintiff was negligent.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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McALLEN v. CITY OF NEW YORK
(Mar 7, 2000)