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PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city could not be held liable for a “trespass activity” motorcycle accident in the parking lot at Yankee Stadium. Trespassers have used the parking for motorcycles, dirt bikes and all-terrain vehicles for recreation for years. Plaintiff’s decedent was killed in a collision in the parking lot. Under the General Obligations Law the city could not be liable unless its conduct was willful or malicious:

The decedent, who trespassed onto a Yankee Stadium parking lot in the off season together with other trespassers who similarly rode motorcycles, dirt bikes and all-terrain vehicles, suffered fatal injuries in a collision with an all-terrain vehicle operated by defendant Pena. The record shows that the nature of the trespass activity involved was commonplace for the parking lot in question, for at least two years, and that drag racing would sometimes be involved. Plaintiff alleged that the City (as lot owner) and Kinney (as lessee) were negligent for not repairing and/or securing the lot’s perimeter fence, and in not employing proper security or supervision to keep trespassers off the premises.

Here, the subject property was physically conducive to the motorcycle activity taking place thereon, and was appropriate for public use in pursuing the activity as recreation (see General Obligations Law § 9-103). As such, the City is immune from liability for any ordinary negligence on its part that may have given rise to the cause of the decedent’s accident, and plaintiff has not otherwise demonstrated that the City’s challenged conduct was willful or malicious as might preclude the City’s reliance on the defense afforded under General Obligations Law § 9-103 … .

Furthermore, although Kinney has not relied upon General Obligation Law § 9-103 as a potential defense to the action against it, the statute’s defense is available to lessees as well as property owners … . Inasmuch as the issue appears on the face of the record, involves no new facts and could not have been avoided if it were timely raised … . Rodriguez v City of New York, 2018 NY Slip Op 03821, First Dept 5-29-18

​NEGLIGENCE (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/TRESPASS ACTIVITY (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/GENERAL OBLIGATIONS LAW (MUNICIPAL LAW, IMMUNITY, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))

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