        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1255
CA 11-00842
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


RACHEL L. STERN, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                              MEMORANDUM AND ORDER

GUY H. EASTER, INDIVIDUALLY AND DOING BUSINESS
AS BROOKLAWN GOLF CLUB, MIDCOURT BUILDERS CORP.,
DEFENDANTS-APPELLANTS-RESPONDENTS,
PEMCO PROPERTIES III, PG ASSOCIATES,
DEFENDANTS-RESPONDENTS,
AND JOHN DOE, DEFENDANT.


LIPPMAN O’CONNOR, BUFFALO (ROBERT H. FLYNN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

HISCOCK & BARCLAY, LLP, SYRACUSE (DAVID G. BURCH, JR., OF COUNSEL),
FOR PLAINTIFF-RESPONDENT-APPELLANT.

SANTACROSE & FRARY, ALBANY (RICHARD S. POVEROMO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Donald A. Greenwood, J.), entered October 5, 2010.
The order granted the motion of defendants Pemco Properties III and PG
Associates for summary judgment, and granted in part and denied in
part the motion of defendants Guy H. Easter, individually and doing
business as Brooklawn Golf Club, and Midcourt Builders Corp. for
summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting the motion of defendants Guy H. Easter,
individually and doing business as Brooklawn Golf Club, and Midcourt
Builders Corp. in its entirety and dismissing the complaint against
them and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she was struck by a golf ball that was
driven by an unknown golfer allegedly from the 18th tee of the
Brooklawn Golf Club (Brooklawn), which is owned by defendant Midcourt
Builders Corp. (Midcourt). Defendant Guy H. Easter and his wife are
the owners of Midcourt. At the time she was struck, plaintiff was
having coffee with a friend at the outdoor patio area of an office
building adjacent to the golf course. The building was owned by
defendants Pemco Properties III and PG Associates (Pemco defendants).
Plaintiff asserted causes of action for negligence against Easter,
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                                                         CA 11-00842

individually and doing business as Brooklawn, and against Midcourt,
the Pemco defendants and “John Doe,” the golfer who allegedly struck
the ball from the 18th tee.

     Following discovery, the Pemco defendants, as well as Easter and
Midcourt, moved for summary judgment dismissing the complaint against
them. Supreme Court granted the motion of the Pemco defendants and
granted only that part of the motion of defendants Easter and Midcourt
with respect to Easter. We conclude that the court should have
granted the motion of Easter and Midcourt in its entirety, and we
therefore modify the order accordingly.

     As plaintiff correctly contends, a property owner generally owes
a duty “to exercise reasonable care in the maintenance of its property
to prevent foreseeable injury that might occur on the adjoining
property” (Gayden v City of Rochester, 148 AD2d 975, 975; see Gellman
v Seawane Golf & Country Club, Inc., 24 AD3d 415, 418). There is,
however, “no legal duty to protect against an occurrence which is
extraordinary in nature and would not suggest itself to a reasonably
careful and prudent person as one which should be guarded against”
(Martinez v Santoro, 273 AD2d 448, 448). Thus, a golf course may not
be held liable “within the concepts of negligence [for golf balls
entering adjoining property where there is] lack of notice . . . and
lack of foreseeability” (Nussbaum v Lacopo, 27 NY2d 311, 316). Here,
“[t]he record does not support a conclusion that the occurrence was
frequent. In fact, plaintiff’s evidence . . . is consistent with
occasional incursions only. Thus, there is no [evidence] upon which
to base a finding of even constructive notice,” nor is there evidence
upon which to base a finding of foreseeability (id.).

     The uncontroverted evidence in the record before us establishes
that the patio area where plaintiff was struck by the golf ball was
constructed many years after the golf course had been built.
Moreover, the patio was over 200 yards from the 18th tee, and over 150
feet from the middle of the 18th fairway. The friend with whom
plaintiff was having coffee is the only source of evidence that any
golf ball had ever entered the patio area. According to the friend’s
deposition testimony, he recalled that, on one occasion during a
company picnic, a golf ball had rolled onto the patio from the
direction of the 18th tee. Midcourt, however, had no notice of that
occurrence. Rather, the evidence submitted by plaintiff established
that Midcourt had notice that only two golf balls struck the building
owned by the Pemco defendants over the course of 15 years. One of the
balls struck the building approximately 75 feet from the patio area,
while the other ball struck the building approximately 100 feet from
the patio area. We note that the record is devoid of evidence that
those golf balls were driven from the 18th tee and, given the
configuration of the golf course, it would be merely speculative to
conclude that they were (see generally Mallen v Farmingdale Lanes,
LLC, 89 AD3d 996; Endieveri v County of Oneida, 35 AD3d 1268).

     In any event, even assuming, arguendo, that the golf balls that
struck the building were driven from the 18th tee, we conclude that
two such incursions over the course of approximately 15 years is too
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                                                         CA 11-00842

infrequent to constitute notice of an unreasonably dangerous condition
(see Nussbaum, 27 NY2d at 316). While “ ‘[q]uestions concerning
foreseeability and proximate cause are generally questions for the
jury’ ” (Paul v Cooper, 45 AD3d 1485, 1487; see Prystajko v Western
N.Y. Pub. Broadcasting Assn., 57 AD3d 1401), “where only one
conclusion may be drawn from the established facts . . . the question
of legal cause may be decided as a matter of law” (Derdiarian v Felix
Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784, 829). That
is the case here with respect to the issue of foreseeability. The
incursion of golf balls onto the property where plaintiff was situated
was so minimal and infrequent as to compel the conclusion that, as a
matter of law, the golf ball incident in question was an extraordinary
occurrence that a reasonably prudent golf course owner would not be
expected to guard against (see generally Martinez v Santoro, 273 AD2d
448; Clifford v Sachem Cent. School Dist. at Holbrook, 271 AD2d 470,
lv denied 95 NY2d 759).

     For the same reasons, we conclude that the court properly granted
the motion of the Pemco defendants. Plaintiff submitted evidence that
those defendants had notice of only two golf balls striking the
building, and neither ball landed in or within 75 feet of the patio
area where plaintiff was injured. Although there was evidence that
vehicles in the parking lot of the Pemco defendants were hit by balls
driven from the 10th tee, the patio is on a different side of the
building from the side adjacent to the parking lot. In addition, the
patio is behind the 10th tee, rendering it highly unlikely that a ball
struck therefrom or from anywhere else on that hole could land in the
patio area. Thus, the fact that golf balls driven from the 10th tee
sometimes landed in the parking lot did not serve to place the Pemco
defendants on notice that someone in the patio area could be struck by
a golf ball. We therefore conclude that, as with Midcourt, evidence
that two balls struck the Pemco defendants’ building over a course of
approximately 15 years is simply too minimal and infrequent to give
rise to liability against the Pemco defendants.

     All concur except FAHEY, J.P., who dissents and votes to modify
in accordance with the following Memorandum: I respectfully dissent.
I cannot agree with the majority that Supreme Court erred in denying
that part of the motion of defendants Guy H. Easter, individually and
doing business as Brooklawn Golf Club (Easter), and Midcourt Builders
Corp. (Midcourt) for summary judgment dismissing the complaint against
Midcourt. I also disagree with the majority that the court properly
granted the motion of defendants Pemco Properties III and PG
Associates (Pemco defendants) for summary judgment dismissing the
complaint against them.

     Turning first to the motion of Easter and Midcourt, as the
majority correctly notes, a golf course may not be held liable “within
the concepts of negligence [for golf balls entering adjoining property
where there is] lack of notice . . . and lack of foreseeability”
(Nussbaum v Lacopo, 27 NY2d 311, 316). In my view, however, plaintiff
raised an issue of fact whether Midcourt had actual or constructive
notice of the threat of a high-velocity golf ball impact in the area
of the premises owned by the Pemco defendants where plaintiff was
                                 -4-                          1255
                                                         CA 11-00842

injured on April 17, 2006. The record establishes that Midcourt knew
that errant golf shots had entered the premises of the Pemco
defendants, causing damage to windshields and breaking windows in the
office building located there. That damage, as plaintiff’s expert
noted, could only have been caused by “high trajectory, high speed
golf ball flight.” Plaintiff’s expert further stated that the
unprotected seating area for the public on the premises of the Pemco
defendants, i.e., the patio area where plaintiff was struck, “leaves
visitors in the direct path of an errant shot.”

     This case is distinguishable from Nussbaum. There, the plaintiff
lived in a home abutting the fairway of the 13th hole of the defendant
country club. Between the plaintiff’s patio and that fairway was
approximately 20 to 30 feet of rough, and located in that rough was a
natural barrier of trees that ranged in height from 45 to 60 feet.
The injury at issue there occurred in June 1963, when a trespasser
struck a ball from the 13th tee, at a time when the rough was dense
and the trees were in full foliage. The shot crossed into the area of
the plaintiff’s patio and hit the plaintiff (id. at 314).

     The plaintiff in Nussbaum commenced an action against, inter
alia, the golf course, asserting causes of action for nuisance and
negligence against it. In concluding that the plaintiff was not
entitled to damages for nuisance, the Court of Appeals noted that,
“according to [the] plaintiff and his wife, [the presence of] a few
golf balls, which were found in the bushes and fence area of [the]
plaintiff’s backyard,” were minimal trespasses that would not warrant
the granting of an injunction and could not sustain recovery for the
plaintiff’s injuries under a theory of nuisance (id. at 316). The
location where the golf balls were found was also germane to the
Court’s conclusion that the defendant country club did not have notice
of a danger, and that the accident was unforeseeable. In sum, the
Court concluded that minimal invasions in the bushes and fence area of
the plaintiff’s property did not give notice of the danger of the type
of intrusion, i.e., a high-velocity strike, that caused the
plaintiff’s injuries. In that vein, the Court noted that the
plaintiff’s wife had testified that “no golf ball ever struck her
house,” and that there was no evidence that a golf ball had previously
passed over or through the rough and trees that guarded the
plaintiff’s house (id. at 317).

     Here, unlike in Nussbaum, Midcourt had notice of prior high-
velocity intrusions onto the premises of the Pemco defendants, i.e.,
intrusions of the nature that caused plaintiff’s injuries. More to
the point, the key to the issue of notice with respect to Midcourt is
the nature of the prior intrusions onto the premises of the Pemco
defendants, which were capable of causing the injuries at issue here.
As the Court of Appeals wrote in Nussbaum, “[i]t was that potential
occurrence[, i.e., a high-velocity impact,] which might constitute a
danger, and no notice of such an incident was given” (id.). Here,
however, the record in this case establishes that notice of such a
high-velocity impact was given.

     I further conclude with respect to the motion of defendants
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                                                         CA 11-00842

Easter and Midcourt that there is an issue of fact whether the
accident was foreseeable with respect to Midcourt. The record
establishes that the premises of the Pemco defendants, including the
patio area where plaintiff was struck, was unprotected from errant
shots. At the time of the accident, the course was open and immature.
Moreover, the patio area was protected only by three trees. In my
view, that lack of protection made the possibility of this accident
“clear ‘to the ordinarily prudent eye’ ” (id.), especially given the
evidence of prior impacts at the premises of the Pemco defendants and
the opinion of plaintiff’s expert that the patio was within reach of a
shot from the 18th tee even in spite of the trees.

     Turning now to the motion of the Pemco defendants, “as a general
matter, an owner owes no duty to warn or to protect others from a
defective or dangerous condition on neighboring premises, unless the
owner had created or contributed to it” (Galindo v Town of Clarkstown,
2 NY3d 633, 636). The basis for such a rule, as the Galindo Court
noted, is “obvious—a person who lacks ownership or control of property
cannot fairly be held accountable for injuries resulting from a hazard
on the property” (id.; see Haymon v Pettit, 9 NY3d 324, 328, rearg
denied 10 NY3d 745).

     The Galindo rule does not require dismissal of the complaint
against the Pemco defendants. “In Galindo, [the Court of Appeals]
left open ‘the possibility that some dangers from neighboring property
might be so clearly known to the landowner, though not open or obvious
to others, that a duty to warn would arise’ ” (Clementoni v
Consolidated Rail Corp., 8 NY2d 963, 965, quoting Galindo, 2 NY3d at
637). Here, in my view, there was such a danger. The Pemco
defendants knew that a tenant on their premises had constructed the
patio and that there were two broken windows at the building on their
premises as a result of golf balls striking those windows. The
windows logically could have been broken only by a high-velocity
impact. The patio is situated adjacent to the building on the
premises of the Pemco defendants and thus, logically, high-velocity
strikes that imperiled the windows of the building also imperiled
patrons of the patio. Consequently, in my view, the danger of an
accident such as this was so clearly known to the Pemco defendants
that a duty to warn arose (cf. Galindo, 2 NY3d at 637-638).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
