CLEARY v. HARRIS HILL GOLF CENTER INC (2005)

Plaintiffs commenced this action to recover damages for injuries sustained by Patrick V. Cleary (plaintiff), a volunteer fireman responding to a fire, when he fell into an excavation pit on property adjacent to a golf course owned by Harris Hill Golf Center, Inc. (defendant).  According to plaintiffs, defendant was negligent in failing to guard or warn plaintiff against that hazard.   Supreme Court erred in denying the motion of defendant for summary judgment dismissing the complaint against it.   Under the circumstances of this case, defendant had no duty to guard or warn plaintiff against the hazardous condition of a property that it did not own or control and over which it exercised no special use (see Kaufman v. Silver, 90 N.Y.2d 204, 207-209, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Brown v. Congel, 241 A.D.2d 880, 881, 660 N.Y.S.2d 507).  “[A]s 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․ The reason for such a rule 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” (Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419).   We have considered the cases relied upon by plaintiffs, i.e., Leone v. City of Utica, 66 A.D.2d 463, 414 N.Y.S.2d 412, affd. 49 N.Y.2d 811, 426 N.Y.S.2d 980, 403 N.E.2d 964, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794, Gayden v. City of Rochester, 148 A.D.2d 975, 539 N.Y.S.2d 211 and Licato v. Eastgate, 118 A.D.2d 904, 499 N.Y.S.2d 472 and conclude that they are distinguishable from the case herein.

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant Harris Hill Golf Center, Inc. is dismissed.

MEMORANDUM: