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January 13, 2004.


The opinion of the court was delivered by: JOHN GLEESON, District Judge


Plaintiffs Joseph and Hennie Rubin seek damages for injuries that Joseph allegedly sustained while riding a bicycle on a roadway in the vicinity of Beach 222nd Street and Rockaway Point Boulevard, in Queens, New York. This area is within the boundaries of the Gateway National Recreation Area ("GNRA"), a unit of the National Park System, which is a federal facility administered by the United States Department of the Interior and the National Page 2 Park Service. The Rubins thus bring their negligence action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671 et seq.

  The government has moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that the Rubins cannot recover for any injuries because it is immune from suit. For the reasons stated below, I grant the government's motion to dismiss the complaint under Rule 12(b)(1).*fn1


  The following facts are relevant for purposes of this motion. As earlier noted, the Rubins claim that on June 13, 1999, Joseph was injured while riding a bicycle on a roadway within the GNRA, a national park area administered by the federal government. The GNRA is comprised of marshes, wildlife sanctuaries, recreational and athletic fields, paved roads, bicycle paths, as well as miles of sandy beaches. On March 18, 2002, the Rubins filed their complaint in this case, alleging negligence. The roadway*fn2 is an access road serving a members-only private club operating under a special use permit granted by the National Park Service (which is open to the public by membership), and a fisherman's parking lot for which the government charges a Page 3 fee. (Winokur Dec. ¶¶ 2-3 (citing Arvin Dep. at 6-9).)*fn3 Plaintiffs claim that on June 13, 1999, the "roadway, guardrail and area was in a dangerous and defective condition . . . and was covered with and contained loose sand and/or gravel and was in an unsafe, hazardous and dangerous condition." (Compl. ¶ 23.) They also claim that the government owed them a duty to make the roadway and surrounding areas safe, but that it breached that duty. (Id. ¶¶ 18-22.) Relatedly, they contend that the government had actual or constructive knowledge of the dangerous condition prior to the incident in question. Id. ¶¶ 25-26.) Last, Hennie Rubin sues for loss of consortium of her husband. (Id. ¶ 32.) Together, they seek damages in the amount of $3,300,000.


 A. The Standard for a Motion to Dismiss under Rule 12(b)(1)

  When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n.6 (2d Cir. 2001); Exch. Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under Rule 12(b)(1), the court must accept as true all material factual allegations in the complaint but will not draw inferences favorable to the party asserting jurisdiction. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992).

 B. The Rubins' Negligence Claim

  Under the FTCA, the government is treated as a private person, Guttridge v. Page 4 United States, 927 F.2d 730, 731-32 (2d Cir. 1991), and tort liability for an accident based on the alleged negligence of the government is governed by the laws of the state where the accident occurred — in this case, New York. See Richards v. United States, 369 U.S. 1, 11 (1962); Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). In order to establish negligence under New York law, a plaintiff must prove these elements: "`(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.'" P.W.B. Enters., Inc. v. Moklam Enters., Inc., 633 N.Y.S.2d 159, 185 (1st Dep't 1995) (quoting Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333 (1981)).

  Under New York law, a landowner does not owe a duty of care to keep its premises safe for bicycle riding. See N.Y. Gen. Oblig. Law § 9-103(1)(a) ("an owner, lessee or occupant of the premises . . . owes no duty to keep premises safe for entry or use by others for . . . bicycle riding . . . or to give warning of any hazardous condition . . . on such premises to persons entering for such purpose[].") Furthermore, a landowner's grant of permission to a bicyclist does not

(1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.
N.Y. Gen. Oblig. Law § 9-103(1)(b).

  Whether or not a landowner may be held liable for a defective condition turns on whether "the property is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in [§ 9-103]." Iannotti v. Consol. Rail Corp., 74 N.Y.2d 39, 45 (1989); see also Guttridge, 927 F.2d at 733. Page 5 Section applies only where (1) the property was physically conducive to or suitable for the particular activity involved, and (2) the property was appropriate for public use. Iannotti, 74 N.Y.2d at 45-46. See, e.g., Guttridge, 927 F.2d at 733 (government not liable to individual injured when his bicycle ran into a gate at the exit to a national historic park because the park was physically conducive to bike riding and suitable for public use). Moreover, in determining the applicability of these factors, the property "must be judged by viewing the property as it generally exists, not portions of it at some given time." Bragg v. Genesee County Agr. Soc., 84 N.Y.2d 544, 552 (1994); see also West v. United States, No. 00 Civ. 9433, 2003 WL 164278, at *4 (S.D.N.Y. Jan. 10, 2003) ("where the land as a whole is appropriate for the activity at issue [§ 9-103] applies, even if some portion of the premises is dangerous or otherwise unsuitable.")

  Based on the above case law, and assuming that all of the facts alleged by the Rubins are true, the government is entitled to have the case dismissed. As a regular landowner under New York tort law, the government is immune from liability because Rubin sustained his injuries in an area both conducive to and suitable for bicycle riding, by the public, as the area generally existed. It is undisputed that the GNRA consists of, among other things, "paved roads, [and] bicycle paths." (Knapp Dec. ¶ 2.) The photographs of the access road in the appendix make abundantly clear that the roadway at issue here was both appropriate for public use and for bike riding, specifically. Moreover, in considering the GNRA as a whole, as I ...

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