BEZOZO v. Birdies and Bogies, Inc., respondent. (1999)

Supreme Court, Appellate Division, Second Department, New York.

Edward BEZOZO, appellant, v. TOWN OF HEMPSTEAD, defendant, Birdies and Bogies, Inc., respondent.

Decided: March 15, 1999

LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and WILLIAM D. FRIEDMANN, JJ.

Melvin J. Berg, Tappan, N.Y., for appellant. Clausen Miller, P.C., New York, N.Y. (James T. Ferrini, Gregory S. Smith, Steven J. Fried, and Melissa A. Murphy-Petros of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Winick, J.), dated October 30, 1997, as granted that branch of the motion of the defendant Birdies and Bogies, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff sustained personal injuries when he fell, while wearing spiked golf shoes, after walking into a cafeteria owned by the defendant Town of Hempstead and operated by the respondent Birdies and Bogies, Inc.

We agree with the Supreme Court that there are no issues of fact regarding the absence of liability of the respondent Birdies and Bogies, Inc. There is no duty to warn against a condition that can readily be observed by those employing the reasonable use of their senses (see, Poerio v. State of New York, 144 A.D.2d 129, 131, 534 N.Y.S.2d 459). Under such circumstances, the condition is a warning in itself (see, Rolfe v. Galt, 102 A.D.2d 983, 984, 477 N.Y.S.2d 790).

MEMORANDUM BY THE COURT.

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