United States: Shout "Fore" Before Taking That "Mulligan"

Golf, like any other recreational activity, runs the risk of accidents on the course – and the resulting injuries often lead to "finger pointing" as to which golfer was at fault. And the game also often raises predictable and unpredictable collateral disputes such as whether a golf club membership is property that can be seized by a judgment creditor; and claims for trespass and nuisance damages when golf balls land on an adjacent property. Several recent examples follow:

MacIsaac v. Nassau County, 2017 NY Slip Op 05814, 2d Dept. July 26, 2017

In an action to recover damages for wrongful death, Supreme Court granted summary judgment dismissing the complaint.

The Second Department summarized the facts and prior proceedings:

On August 9, 2012, John R. MacIsaac...was walking from the 12th green to the 13th tee box on a golf course at Eisenhower Park when he allegedly tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. The plaintiff, as administratrix of the decedent's estate, and individually, commenced this action against the defendant, which owned the premises, alleging, inter alia, wrongful death. The defendant moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff's claims were barred by the doctrine of primary assumption of risk[.]

And, as follows, summarily reversed:

Under the doctrine of primary assumption of risk, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation"...This includes risks associated with the construction of the playing surface and any open and obvious condition on it[.] The defendant established its prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied[.]

However, in opposition, the plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course...In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion[.]

Dalton v. Macdonald, 2017 NY Slip Op 27404, Sup. Ct. West. Co. December 5, 2017

Defendant moved for summary judgment dismissing the complaint.

Supreme Court summarized the facts:

Plaintiff alleges that on October 28, 2012, she was struck in the head by a golf ball hit by the defendant at the Lake Isle Country Club. At the time of the accident, plaintiff, an experienced golfer, had been a member of the club for approximately eight years, played golf twice a week, and had a twenty-three handicap. Plaintiff and defendant played golf regularly together for four or five years prior to the accident.

On the day of the accident, plaintiff and defendant played in a threesome and started on the back nine. They completed twelve holes before the accident occurred. On the fourth hole, each player hit their tee shot and then their second shot. Defendant's second shot went into the rough on the right side of the fairway which was covered with leaves. After defendant hit her second shot from the right side of the fairway, plaintiff and her riding partner drove over to her ball which was on the left side of the fairway near the sand trap. However, defendant, knowing that she would not be able to find the ball because the rough was completely covered in leaves dropped another ball and hit a "mulligan" shot. Defendant's intent was to hit the ball straight towards the green located on the right, however, the ball went approximately 40 to 45 degrees to the left and struck plaintiff. At the time, plaintiff was partially in the cart and was about to exit the cart when she was struck on the right side of her head. Defendant testified at an examination before trial that she didn't yell anything prior to taking the shot because she could not see plaintiff's golf cart and she assumed her ball traveled the line that she intended. Plaintiff testified that defendant was over her right shoulder and she did not see defendant swing at the ball that hit her.

The contentions of the parties:

Defendant moves for summary judgment dismissing the complaint on the grounds that the doctrine of assumption of the risk is applicable. She claims that errant golf shots are part of playing and participation in the game of golf even at the professional level.

In opposition, plaintiff argues that triable issues of fact exist and the doctrine of assumption of the risk is not applicable. Plaintiff states that defendant dropped another ball and hit a mulligan shot without telling anyone. Plaintiff attests that it was impossible for defendant not to see plaintiff's cart which was only thirty to forty degrees off the intended line of ball flight and that she knew the location of plaintiff's ball. Plaintiff argues that defendant could not have reasonably expected plaintiff to wait for her to hit a second ball.

The applicable law:

Pursuant to the doctrine of primary assumption of risk, "a voluntary participant in a sporting or recreational activity `consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'"...The doctrine does not, however, serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased..."[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff"[.]

Furthermore, "in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are `unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'"[.]

Applied the facts to the law:

Here, defendant failed to establish her prima facie entitlement to judgment as a matter of law. While being struck in the head without warning by an errantly hit golf ball is a risk inherent in playing golf...the possibility that the ball will fly off in another direction is a risk inherent in the game"...The plaintiff, who was an experienced golfer and was admittedly aware of the possibility of being struck by an errant ball, assumed this risk by entering the tournament[.]

And concluded that:

[I]ssues of fact exist as to whether defendant's failure to warn that she was taking a "mulligan" shot amounted to intentional or reckless conduct that unreasonably increased the risk inherent in golf. Indeed, defendant had already taken her second shot when plaintiff and her riding partner drove over to their balls on the left side of the fairway near the sand trap. It was at that time that defendant dropped another ball and hit a "mulligan" shot without warning plaintiff.

Herman v. Weisner, 2017 NY Slip Op 51943(U), Sup Ct. Nass. Co. November 30, 2017

Supreme Court addressed a motion for summary judgment by defendant, Barry Weisner, dismissing the complaint of plaintiff, Bryan Herman.

The Court summarized the facts:

This case arises out of personal injuries allegedly sustained by the Plaintiff on August 5, 2015, when he was hit in the face by an errant golf ball hit by the Defendant while playing golf at the Golf Club at Middle Bay in Oceanside, New York. At the time of the incident, the Plaintiff and his foursome were playing on the 8th hole while the Defendant and his group were playing on the 15th hole. It is undisputed that the 8th hole runs parallel to, but in the opposite direction of the 15th hole; and that the two holes were separated by a dense line of trees, measuring approximately 125 yards in length and 10 to 15 yards in width. After the Plaintiff's foursome hit their tee shots, the Plaintiff claims that he walked off the 8th fairway and onto the 15th fairway to look for a golf ball of a member in his group when he was struck in his right eye by a golf ball hit by the Defendant from the 15th tee box. It is further undisputed that the Defendant did not yell "fore" prior to hitting his shot.

Herman's deposition testimony:

[H]erman, testified at an Examination Before Trial...Herman is fifty-one-years old and has been playing golf since he was twenty-four...Herman considers himself an "avid golfer" and has traveled internationally to play golf...He has also played in a "formal match"...The last "index" or "handicap" Herman could recall having was a "12", and prior to that he was a "5 handicap".

[H]erman, testified that on the date of the incident, he was voluntarily playing a game of golf at Middle Bay Golf Club with Luke Magliaro; Luke's brother, Mark Magliaro; and Luke's son, Ryan Magliaro...At the time of the incident...Herman, and his group were playing the 8th hole[.]

Herman's recollection of the events leading up to the incident and his positioning at the time he was struck by the golf ball is contrary to the testimony of two nonparty witnesses, Luke and Mark, that were playing in the Plaintiff's foursome. Herman testified that his tee shot from the 8th tee box landed in the middle of the 8th fairway; and that Mark's tee shot hooked left past the dense part of the tree line that separated the 8th and 15th fairways and landed in the fairway of the 15th hole...Significantly, at that time, Herman did not observe anyone on the 15th tee box [.]

Herman's group had two golf carts. Herman and Mark were riding in one golf cart, while Luke and Ryan were riding in the other...Herman testified that after they hit their tee shots, Mark dropped Herman off in the middle of the 8th fairway where Herman's ball allegedly landed. According to Herman, Mark then proceeded to "circle to look for the ball"...Shortly thereafter, Herman testified that he walked over to help Mark locate his ball as he was still "circling in the open area of the 15th hole"...Herman later testified that he did not recall "the exact spot" where Mark was circling, and that he was "circling around the 15th fairway/rough"[.]

When Herman was walking towards the 15th fairway to help Mark look for his ball, there was nothing obstructing his view of the tee box on the 15th hole. Per Herman, he was able to see it "clearly"...During that walk, Herman looked up and did not see anyone on the 15th tee box. When he stopped at the spot where he thought Mark's ball had landed, Herman looked up again at the tee box, did not see anyone, and then put his head down to start looking for the ball...Herman consistently maintained throughout his deposition that he did not observe anyone at the 15th tee box prior to being struck...Herman explained that his purpose in looking up at the 15th tee box was to "make sure there was nobody hitting."...Herman testified that he was struck by Weisner's ball less than a minute later[.]

* * *

According to Herman, from the vantage point of the 15th tee box, he was struck approximately 80 yards from the tee box and approximately 20 to 25 degrees to the left of the center of the fairway[.]

Herman was struck in his right orbit...Immediately after being struck, Herman recalls screaming and stumbling "quite a bit" until he eventually hit the ground...Herman could not specify the number of yards or feet he stumbled before falling to the ground; and described it was not as much as 100 yards, but more than a few feet[.]

Herman admitted at his deposition that he would have an obligation to let the Defendant and his group play on the 15th hole had he seen them prior to searching for a ball on the wrong fairway[.]

The deposition testimony of Luke Magliaro:

Luke was playing golf with the...Herman, on the date of the incident. Luke testified at his nonparty deposition that he is a skilled golfer who had played at the subject golf course on approximately four (4) prior occasions...Luke explained that the line of trees separating the 8th from the 15th fairway was approximately 125 yards in length; and the distance from the end of the line of trees to the 15th tee box was approximately 75 to 100 yards[.]

Contrary to Herman's testimony that Herman's tee shot landed in the middle of the fairway, Luke testified that Herman's tee shot landed in an area of the rough to the left of the 8th fairway...Luke's own tee shot landed in the middle of the 8th fairway past the end of the line of trees that separated the two holes...According to Luke, after the foursome hit their tee shots, Luke and Ryan (who were riding in a golf cart together) drove to Luke's ball located in the center of the 8th fairway. At that point, Luke observed his brother, Mark, sitting in the other golf cart that was stopped in the rough off the fairway...Herman, was standing behind the cart lighting a cigar...Immediately prior to that, Luke glanced at the 15th hole and observed a threesome at the 15th tee box...Markedly, Luke was able to view the Defendant's threesome at the 15th tee box from his location on the 8th fairway, while the Plaintiff claims he did not see anyone on the 15th tee box while allegedly on the 15th fairway.

Luke testified that he had the Plaintiff under his constant supervision until the time he was struck[.]

* * *

Luke estimated the distance between the 15th tee box and the location where Herman was on the ground was approximately 150 yards; and at an angle between 45 and 90 degrees...Luke did not hear or see the golf ball hit any trees prior to striking the Plaintiff...He also did not hear anyone call out "fore" or any other warning prior to the incident.

The deposition testimony of Mark Magliaro:

Mark testified consistently with Luke, and contrary to the Plaintiff regarding the positioning of their tee shots. Mark testified at his nonparty deposition that Luke's tee shot landed in the middle of the fairway past the line of trees; and Herman's tee shot landed in middle of the line of trees separating the 8th and 15th fairway, but closer to the 8th fairway side...Contrary to Herman's recollection, Mark testified that he was a passenger in the golf cart driven by Herman. According to Mark, they located Herman's ball in the tree line, pulled up past the ball and stopped the golf cart. Mark observed trees on either side of the area where the golf cart was stopped...Mark testified consistently with Luke that Herman was standing behind the cart lighting a cigar at the time the incident occurred[.]

* * *

Mark then "heard the scrape off the cart roof, and then [he] heard [Plaintiff] screaming bloody hell"...Mark also testified consistently with Luke that Herman did not move any appreciable distance from the time he was struck to the time he fell to the ground[.]

Mark did not hear anyone yell "fore" prior to the incident. Nor did he hear the golf ball hit any trees prior to the incident. The only sound he heard was what appeared to be a golf ball scraping off the top of the cart[.]

The photographs:

Photographs taken on behalf of the Plaintiff were marked at the depositions of the Plaintiff and nonparty witnesses that purport to explain the location where the Plaintiff was allegedly struck by the Defendant's misdirected shot. On one of the photographs, the Plaintiff marked an "X" where he believes he was struck on the 15th fairway...While the Plaintiff's marking reflects an open area on the 15th fairway, several other photographs depict the Plaintiff on the ground in a shaded area under the dense line of trees that separate the two fairways...The Plaintiff conceded at his deposition that said photographs do not depict him "sitting on the fairway", but rather, reflect the location where he "eventually" fell after being struck and stumbling some unknown distance until he fell to the ground[.]

Luke also marked an "X" on certain photographs to show the location where the Plaintiff was struck which differed from the area marked by the Plaintiff...Contrary to the Plaintiff's contention that he was struck in an open area of the 15th fairway, Luke's marking blatantly reflects that the Plaintiff was struck in a shaded area located under the dense swath of trees on the side closer to the 8th fairway[.]

* * *

In a sworn Affidavit by the Plaintiff's expert engineer, the distance between where the Plaintiff alleges he was struck by the golf ball and the 15th tee box was measured to be 75 yards, give or take 5 yards...Mr. Krongelb also measured the angle from the center of the 15th fairway to where the Plaintiff claims he was struck to be approximately 8 degrees...Further, Mr. Krongelb measured the distance between where the Plaintiff marked an "X" purportedly depicting where he was struck and where he ultimately fell to the ground. The distance between these two points was measured to be approximately 20 yards...Notably, Mr. Krongelb did not measure the distance between the 15th tee box and where the Plaintiff was found lying on the ground or where Mark and Luke testified the incident occurred closer to the 8th hole side of the line of trees.

Weisner's deposition testimony:

[Weisner] has been playing golf for approximately twenty years since his retirement. Weisner considers himself a "high-handicap, recreational golfer."...He typically shoots 25-35 shots over par. Weisner is a right-handed golfer. This means that when "[Weisner slices] a ball it goes to the right of where [he] is aiming and when [he hooks] the ball it goes to the left."[.]

* * *

On the date of the incident, the Defendant, Weisner, was playing golf with two friends, Sheldon Silverstein and Arthur Smith...At the time of the incident, the Defendant, Weisner, and his group were playing the 15th hole which is a long, straight fairway with the green directly ahead of the tee box more than 350 yards away...There was a group ahead of Weisner's group on the 15th hole. Weisner's group had to wait several minutes for the group ahead to move out of range of the 15th hole before hitting their tee shots...Once the hole was clear for them to hit, Smith shot first, Silverstein shot second and Weisner was the last to tee off in his group[.]

Weisner attests that he observed the hole was clear and safe to hit during Silverstein and Smith's tee shots. He did not see anyone straight in front of them, other than the group that was playing ahead of their group who were well out of range. Prior to hitting his tee shot, Weisner "looked out over the hole both to aim [his] shot and to make sure it was safe to hit away."...As he prepared to hit, Weisner did not see anyone in the area where he intended to hit the ball. Nor did he see anyone in the tree line to the left (separating their hole from the 8th hole) or hear anything to suggest someone was there. Weisner attests that it was clear for him to hit the ball[.]

When Weisner struck his tee shot, instead of going straight as he intended, the golf ball went high and to the left into the line of trees separating the two holes...He lost sight of the golf ball when it disappeared into the "thick leaves of the line of trees on the left side of the hole approximately 150-170 yards out from [the] tee box but at a sharp angle to the left of the straight line [he] had hoped for."...He then heard someone cry out. He never saw the Plaintiff or anyone in the line of trees before he hit his ball or while it was in the air. The scream led him to believe someone was struck by the ball, although he did not see the contact. Weisner and the other members of his group then immediately got into their golf carts and drove to the area where the ball disappeared. Weisner then observed the Plaintiff lying on the ground in the shade of the trees, which was the first time he or anyone in his group saw the Plaintiff...Weisner attests that he does "not know if the ball [he] hit struck the plaintiff directly, if it ricocheted off a branch or something else, or that it hit him at all."[.]

Weisner explains that the distance between where he intended to hit his drive and where it went was at least 45 degrees left of the center line of the 15th fairway. Weisner did not intend to hit the ball into the line of trees[.]

The Silverstein affidavit:

Silverstein submits...that he was looking out over the hole to watch Weisner's tee shot and never saw anyone before he hit the golf ball. Silverstein avers that there was no one on the hole they were playing, nor did he see anyone on the hole next to them. He further asserts that...Weisner, hit a poor shot in terms of direction because it was far to the left of where a golfer would need to hit the ball to score well on that hole. Silverstein also estimated that Weisner's shot was at least 45 degrees to the left of the middle of the 15th fairway[.]

The deposition testimony of Smith:

Smith testified consistently with Weisner and Silverstein. Smith attests that he saw no one else on the 15th hole or in the general vicinity before hitting his tee shot, with the exception of the group ahead of them. Smith avers that the hole was clear to hit during all three of their tee shots, including Weisner's shot...He further submits that Weisner's "shot travelled at least 150 yards, but was so far to the left of where a golfer wants to be on the hole they were playing, that it disappeared into the thick, overhead canopy of leaves in the line of trees separating the hole [they] were playing from the one to the left of it."...Smith estimated that Weisner's shot was 30 to 50 degrees left of the center of the 15th fairway. Smith first saw the Plaintiff when he was lying on the ground in the line of trees after Weisner hit his golf ball[.]

Plaintiff's's contentions:

[P]laintiff attests that the...Weisner, was negligent and reckless in hitting the golf ball while the Plaintiff was allegedly in range and in the line of play, in failing to follow the rules of golf, and in failing to provide a warning for the shot which created an unreasonable increased risk of harm to the Plaintiff...The Plaintiff alleges that he suffered severe injuries, including multiple fractures in the area around his right eye, loss of visual acuity, loss of depth perception, and loss of peripheral vision[.]

Defendant's contentions:

Relying primarily on the seminal [2010 Court of Appeals case] of Anand v. Kapoor...the Defendant submits that he is entitled to summary judgment based on the assumption of risk doctrine. The Defendant argues that the Plaintiff assumed the risk of being hit by an errant golf shot by voluntarily participating in the game of golf. The Defendant further argues that no duty is owed to the Plaintiff to give a warning by yelling "fore" before hitting the ball because the Plaintiff was not within the intended line of flight of the golf ball.

Counsel for the Defendant further asserts that the Plaintiff's testimony concerning his location at the time of the incident should be found incredible as a matter of law as it contradicts the testimony of all party and nonparty witnesses, as well as photographs taken at the scene. Counsel avers that, accepting the Plaintiff's version of the incident as true, the sequence of events that would have to occur in under a minute is implausible. In this regard, the Plaintiff testified that (i) he did not observe anyone at the 15th tee box less than a minute before he was struck by the Defendant's ball; (ii) he was within the intended line of flight of the Defendant's ball; and (iii) he was standing within the line of play of the 15th fairway. Thus, the three golfers in the Defendant's group would have to pull up to the 15th tee box, exit their golf carts, select their clubs, wait for the group ahead to move out of range, go through their standard pre-shot routines, and hit their tee shots — all in under sixty (60) seconds.

Plaintiff's opposition:

In opposition, counsel for the Plaintiff argues that the Defendant failed to meet his initial burden because the primary assumption of risk doctrine does not apply to the facts of this case. The Plaintiff's counsel relies upon a line of cases which stand for the proposition that a "golfer has a duty to give a timely warning to other persons within a foreseeable ambit of danger, and that duty extends to those in or near the intended line of flight"...In support of the position that the Plaintiff was within the "foreseeable ambit of danger", counsel relies upon the testimony of Luke and Mark that there was a clear line of sight between the incident location and the 15th tee box.

Counsel for the Plaintiff further asserts that the defense's theory is predicated upon the Defendant's claim that the golf ball hit the trees and came down hitting the Plaintiff from a vertical angle. The Plaintiff proffers expert testimony and medical records in opposition to the Defendant's motion to demonstrate that the Plaintiff was struck by a golf ball travelling in a horizontal direction. Moreover, counsel submits that neither Luke, Mark nor the Plaintiff heard the golf ball hit any trees or branches immediately prior to striking the Plaintiff. Lastly, the Plaintiff's expert engineer opined that the angle made by the path of the ball with the center of the fairway of the 15th hole was only 8 degrees. Based on the foregoing, the Plaintiff avers that he was within the intended line of flight of the Defendant's golf shot warranting denial of the motion.

The legal template:

The doctrine of the "assumption of risk" provides that by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of a sport, generally, and flow from such participation...As such, a defendant may be relieved from liability for injuries to a voluntary participant of a sport or recreational activity arising from such risks when the consenting participant has an appreciation of the nature of the risks and continuously assumes the risks[.]

The Anand precedent:

In Anand, the plaintiff was injured by an errant golf shot hit by a member of his own group. At the time the defendant struck the golf ball, he was approximately 15 to 20 feet behind the plaintiff and at an angle just under 90 degrees. The defendant did not know where the plaintiff was when he hit his shot. The ball did not go in the direction intended by the defendant, and instead went sharply to the right at a low trajectory. Defendant did not yell "fore" prior to the stroke.

The trial court granted summary judgment in favor of the defendant golfer. In affirming the trial court, the Appellate Division, Second Department, held that the defendant golfer did not owe plaintiff golfer a duty to give warning of his intent to hit the golf ball; the plaintiff assumed the risk of being struck by a poorly executed golf shot; and the defendant golfer's failure to yell "fore" did not constitute an unreasonably increased risk which the plaintiff golfer did not assume by participating in the sport...While acknowledging the line of cases that predate Anand which stand for the proposition that "a golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger", the Appellate Division held in favor of the defendant golfer finding that the evidence was sufficient to establish that the plaintiff was "at so great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone"...[T]he Appellate Division also acknowledged that "there is no fixed rule regarding the distance and angle which are considered within the ambit of foreseeable danger," but "if the distance and angle are great enough they are not within the danger zone as defined by previous cases."

In affirming the Appellate Division, the Court of Appeals [in Anand] held that "[a] person who chooses to participate in a sport or recreational activity consents to certain risks that `are inherent in and arise out of the nature of the sport generally and flow from such participation'"...The Court continued:

However, a plaintiff `will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks' [defendant's] failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which [plaintiff] consented. Rather, the manner in which [plaintiff] was injured — being hit without warning by a shanked shot while one searches for one's own ball — reflects a commonly appreciated risk of golf[.]

The factual issue before the Court:

[T]he Court must determine whether the Plaintiff was within the intended line of flight of the Defendant's tee shot and thus within the foreseeable ambit of danger.

Concluding that:

Here, it is undisputed that at the time of the incident, the Plaintiff was playing on the 8th hole while the Defendant was on the 15th hole; and that the two fairways ran parallel, but in opposite directions and were separated by a dense line of trees. The Defendant testified that he did not see anyone on the 15th hole or in the vicinity of the tree line prior to hitting his tee shot. Significantly, the Plaintiff does not dispute this fact. In fact, the Plaintiff concedes he did not see anyone on the 15th tee box at any point prior to being struck. As such, it is undisputed that neither party saw the other prior to the incident.

However, a stark conflict exists as to the Plaintiff's exact location at the time he was struck. The Plaintiff claims he was at a distance of 80 yards from the 15th tee box, and at an angle of approximately 20 to 25 degrees from the center of the 15th fairway. However, nonparty witness, Luke, who played in the Plaintiff's own group, placed the Plaintiff under the line of trees separating the two holes closer to the 8th fairway at a distance of approximately 150 yards and an angle between 45 to 90 degrees. Mark similarly placed the Plaintiff in a shaded area under the dense line of trees closer to the 8th hole.

In light of the Anand line of decisions, the Court finds that summary judgment is warranted in favor of the Defendant, Weisner, under either factual scenario.

Accepting the Plaintiff's account of the events as true, he walked off the 8th fairway where he and his group were playing, and onto the 15th fairway where the Defendant and his group were playing, to look for a golf ball. The Plaintiff firmly maintained at his deposition that he looked at the 15th tee box on more than one occasion prior to being struck and did not see anyone before he put his head down to look for the ball and was struck less than a minute later. The flaw in the Plaintiff's position is the expectation to be seen when he admittedly did not see the Defendant or anyone else in his group just prior to being struck. Indeed, the Plaintiff concedes that he would have been obligated to allow the Defendant to play if he would have seen someone at the 15th tee box, since it was the Plaintiff that was on the wrong hole. Thus, the Court finds the Plaintiff's own testimony insufficient to raise a material issue of fact as to whether he was within the intended flight of the Defendant's ball and in plain view.

Summary judgment is also warranted under the second factual scenario, that the Plaintiff was struck under the thick canopy of leaves in the line of trees separating the 8th and 15th holes, but closer to the 8th fairway. This version of the events is supported by the testimony of Luke and Mark, and corroborated by the photographic evidence which plainly depicts the Plaintiff lying on the ground in the shaded area under the dense line of trees. Luke placed the Plaintiff at a distance of approximately 150 yards from the 15th tee box and at an angle between 45 and 90 degrees from the center of the 15th fairway. Mark similarly placed the Plaintiff in the middle of the tree line closer to the 8th fairway.

* * *

In any event, the Plaintiff's own testimony that he was at an angle of about 20 to 25 degrees from the center of the 15th fairway and a distance of approximately 80 yards is sufficient to conclude as a matter of law that he was not within the foreseeable ambit of danger. The Court further reiterates that the facts presented here warranting summary judgment are far more compelling than the facts in Anand where the claimed distance was approximately 20 feet and the plaintiff was struck while playing on the same fairway as the defendant golfer. In light of the similarity of the Plaintiff's version of the incident, which the Court accepts as true, and the facts considered by the Court of Appeals in Anand, this Court is constrained to find that the Plaintiff, Herman, was not within the foreseeable ambit of danger in this case.

Noting that:

[D]efendant's failure to give warning before hitting the ball does not require denial of his motion. As recognized by the Appellate Division in Anand, "a rule recognizing that liability can be predicated upon a golfer's negligent failure to give warning before hitting the ball is inconsistent with the doctrine of primary assumption of the risk". The Court continued, "[m]odern developments in the doctrine of primary assumption of the risk set limits on the duty of care owed to participants in sporting and recreational activities by requiring that the existence of a duty be evaluated against a consideration of the risks the plaintiff assumed when he or she elected to participate in the event, and `how those assumed risks qualified defendants' duty to him [or her]'"[.]

In this matter, the Plaintiff, an experienced golfer, knew or should have known that walking off his fairway and onto another golfer's fairway may not be safe. Simply put, the Defendant cannot be liable for hitting an errant golf shot where he could not anticipate that someone from an adjacent fairway would be looking for a ball in or around the line of trees separating the two holes, out of the Defendant's line of sight and intended line of play. The accident, while tragic, resulted from a known risk in voluntarily participating in the game of golf.

LSQ Funding Group, L.C. v. Werther, 2018 NY Slip Op 51092(U), Sup. Ct. N.Y. Co. July 11, 2018

Following a trial in Florida, the Court entered a $537,000 judgment in favor of LSQ Funding, L.C. and against Daniel Werther and his LLC in the sum of $1.9 million.

Werther was a member of the Bridgehampton Golf Club, Inc. LSQ Funding started a turnover proceeding against Bridgehampton to use the proceeds of the sale of the country club membership to partially satisfy the judgments.

The Court summarized defendants' arguments:

[D]efendants argue that (I) if the Country Club membership is "property", the property is not in the possession or custody of Mr. Werther and that the turnover procedure therefore must be dismissed as procedurally defective because the action should have been brought as against the Country Club with notice to Mr. Werther...but that (II) the Country Club membership is not "property" and, thus, cannot be subject to a turnover...and (III) that the Country Club membership is the separate property of Caroline Werther, Mr. Werther's wife, and is therefore not subject to turnover in satisfaction of Mr. Werther's debt.

Bridge's position:

The Country Club made a limited appearance for the purpose of opposing the...motion. In their opposition papers, the Country Club essentially echos the first two arguments advanced by the Defendants...The court notes that, the Country Club does not also make the Defendants' third argument — that the Country Club membership is Ms. Werther's separate property.

The issues presented:

The controlling issues in this case are whether the membership in the Country Club and the right to resign that membership and receive return of the Membership Deposit is (i) in the possession of Mr. Werther, (ii) property subject to a turnover proceeding...and (iii) not the "separate property" of Ms. Werther. Because we answer all three questions in the affirmative, the Judgment Creditor's motion...granted to the extent that Mr. Werther is ordered to (A) execute and turnover forthwith his resignation as a member of the Country Club and (B) the Membership Deposit and any other proceeds received in connection with such resignation up to the unpaid amount of the total amount owed by him in respect of the Judgment.

As to whether the membership was property in the possession of Werther:
CPLR § 5225(a) provides in relevant part that:

Upon motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is in possession of or custody of money of other personal property in which it has an interest, the court shall order that the judgment debtor pay the money or so much of it as it as is sufficient to satisfy the judgment to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff.

The Defendants and the Country Club argue in their opposition papers that the property is "clearly in the possession or custody of the Club" and that instant action must be dismissed...This argument is however contradicted by the express language of the Country Club Agreement and the Country Club Membership Plan. Specifically, Section II.A. of the Country Club Agreement provides in relevant part that the Country Club "hereby issues to the Member, and the Member hereby acquires from the Company, a revocable license."

[T]he Country Club Membership Plan under the heading Transfer of Membership to the Club provides that a member may transfer his or her Golf Membership only through the Club. In the event that a member desires to resign from the Club, the Member will be required to give thirty days' prior written notice to the Club The resigned membership will be reissued on a first-resigned, first-reissued basis as described above under "Refund Upon Resignation of Golf Membership".

In other words, the express terms of the Country Club Agreement provides that the member (i.e., Mr. Werther) acquired a revocable license from the Country Club and the Country Club Membership Plan provided for the manner in which the member could transfer his or her interest in the Country Club. It is therefore beyond doubt that the Country Club membership (i.e., the revocable license) is in the possession of Mr. Werther.

Whether the membership was subject to a turnover proceeding:

The Defendants and the Country Club next argue that the Country Club membership is not property[.] More specifically, the Defendants and the Country Club argue that [the CPLR] permits the enforcement of a money judgment against any property which can be assigned or transferred and the Country Club membership is neither assignable nor transferable.

Concluding that:

The property at issue here per Section II.A of the Country Club Agreement, is a revocable license. The Country Club Membership Plan indicates that the membership is in fact assignable — albeit, only through the Country Club. In addition, per Section IV. B of the Country Club Agreement, subject to a 30 day notice requirement, a member has the unrestricted right to resign his or her revocable license and receive a refund of a portion of their Membership Deposit. It is therefore axiomatic that the membership has potential economic value and that by simply resigning the membership interest is transferable[.]

Whether the country club membership was separate or marital property:

The Defendants argue that the Country Club membership is Ms. Werther's separate property as having been acquired by bequest, devise or descent per...[the Domestic Relations Law. In support of this proposition, the Defendants offers only 2 affidavits — one from Mr. Werther and one from Mr. Werthers' wife, each indicating that the Country Club membership in his name belongs in fact to Ms. Werther, and each such affidavit executed some 10 years after the Country Club membership was obtained.

More specifically, in her affidavit, Ms. Werther claims that the Country Club membership was her father's (Howard Gettis) who bequeathed all of his property to his three daughters equally and that she received a reduced share in his estate in consideration for her acquisition of the Country Club membership. She further alleges that the Country Club through a "representative" advised that there were two conditions to her taking over her deceased father's membership — (1) "that husbands were normally the named member" which she "was not concerned about" because "both husbands and wives have equal right to access the Club's facilities" and (2) that she pay, which she alleges she did out of her own separate funds, the difference between what the Country Club membership was at the time and what her father had paid. Finally, she claims that "it has been [her] separate property since that time". In his affidavit, Mr. Werther also claims that the Country Club membership is in his name because "the Club preferred that husbands be the named member"...[D]efendants argue that if the Court does not dismiss the action outright, the Court should hold a hearing to determine the interest of Ms. Werther.

The problem with the Defendants argument is that even taking all of the allegations set forth in their affidavits as true, without a nominee agreement or post marital agreement or any other evidence whatsoever executed at the time that the Country Club Membership was assigned to Mr. Werther establishing the Country Club Membership as Ms. Werthers' separate property, the Country Club membership can not be her separate property under established law and the governing documents. To wit, either the Country Club membership and the additional separate money Ms. Werther alleges that she paid at the time of the transfer of the Country Club membership to her husband was (x) an outright gift to her husband as the Country Club membership is in his name or (y) it became marital property. The Country Club Agreement and the Country Club Membership Plan also contradict her position. For example, pursuant to Section II.A of the Country Club Agreement, the Country Club consented to the assignment of the Golf Membership by Howard Gittis to Mr. Werther. Pursuant to Section II.A, Mr. Werther acknowledged that the Golf Membership at the time of Mr. Gittis' death required the payment of a total of $850,000 which consisted of a non-refundable Initiation Fee of $400,000 and a refundable Membership Deposit of $450,000 and pursuant to Section II.B, Mr. Werther delivered a $350,000 Initiation Fee plus sales tax (i.e., $380,187.50) to the Country Club and agreed that upon the assignment to him of the Golf Membership from Mr. Gittis, $50,000 of the $500,000 membership deposit that had been made by Mr. Gittis shall be non-refundable as the balance of the Initiation Fee and $450,000 shall be the "Member's refundable Membership Deposit"... Notably, Section II.B further provided that if the Estate of Howard Gittis advises that it will not assign the Gittis Membership and/or demands that the Company refund the Gittis Membership Deposit to the Estate, the Member agrees to pay to the Company, within 30 days of the Company's request therefor, $500,000 in payment of the balance of the Initiation Fee and the Membership Deposit, plus $43,125 in payment of sales tax thereon (emphasis added).

In other words, pursuant to Section II.B of the Country Club Agreement, the Country Club membership was to be assigned to Mr. Werther and if Mr. Gettis' estate wanted its deposited money back, it could obtain it, and Mr. Werther would then have to make an additional deposit in accordance with Section II.B of the Country Club Agreement, but in any event, Mr. Werther (and not Ms. Werther) would be the member of the Country Club and own the Country Club membership (re: revocable license). In addition, and significantly, Section IV of the Country Club Agreement Refund of Membership Deposit addresses the refunding of the Membership Deposit. Section IV.B provides in relevant part:

If the Member resigns his or her Golf Membership prior to the expiration of the Membership Term, the Company shall refund to the Member (emphasis added) the Membership Deposit.

That is, upon resignation by Mr. Werther, the Membership Deposit is returnable to Mr. Werther — not to the Estate of Mr. Gettis, and not to the Defendant's wife.Schedule B of the Country Club Agreement, Member Information, under the heading of Member Information, it has been handwritten as "Daniel J. Werther" and not "Caroline Werther" and in the line identified as Spouse, the name "Caroline Gittis Wether" has been handwritten.

Moreover, the court notes that the per the express terms of the Country Club Membership Plan, the Country Club membership is not inheritable to the children of existing members — only the spouse of an existing member.

[T]he Country Club Membership Plan under the heading Death of a Member provides as follows:

Upon the death of a Member, the Golf Membership will be transferred to the Member's surviving spouse without the payment of any additional Membership Deposit, provided that the surviving spouse applies for an is approved for membership in the Club. If there is no surviving spouse, or if the surviving spouse does not apply for membership, or if the surviving spouse applies but is not approved for membership in the Club, the Golf Membership shall be deemed resigned and shall be reissued in the same fashion as any other resigned Golf Membership. (emphasis added)

In other words, per the terms of the Country Club Membership Plan, Mr. Gettis' membership could not have passed by inheritance to Ms. Werther. And, for the avoidance of doubt, the sexist assertion advanced by Mr. and Ms. Werther that the "Club preferred that husbands be the named member" is directly contradicted by the Country Club's Membership Plan which permitted inheritance by a surviving spouse regardless of the gender of the survivor.

Put another way, accepting the affidavits of Mr. and Ms. Werther as true, under established law and the Country Club Agreement, the assignment of the Country Club membership from the Estate of Howard Gettis was the same as if (i) Mr. Gettis resigned or his membership was deemed resigned and Ms. Werther received the Membership Deposit back, (ii) Ms. Werther paid both the returned Membership Deposit and the additional required payment to the Country Club and then (iii) put the Country Club membership in her husband's name. Whatever separate status the property may have under those circumstances at the time of the distribution from the estate of Mr. Gettis to Ms. Werther, pursuant to [the Domestic Relations Law] once put in Mr. Werther's name and without a contemporaneous post-marital agreement or nominee agreement (designating Mr. Werther as the owner in name only), the Country Club membership lost its status as "separate" property and became either an outright gift to Mr. Werther or marital property. It is therefore beyond cavil that the membership in the Country Club is Mr. Werther's and has never in any manner whatsoever been maintained as "separate property" by Ms. Werther.

Concluding that:

Inasmuch as the court holds that the Country Club membership (re: revocable license) and the unrestricted right to resign the Country Club membership interest and monetize the Country Club membership is (i) in the possession of Mr. Werther, (ii) property within the meaning of [the CPLR] and subject to a turnover proceeding...and (iii) not the separate property of Ms. Werther, Mr. Werther's is ordered to (A) execute and turnover forthwith his resignation of his membership in the Country Club and (B) the Membership Deposit and any other proceeds received in connection with any such resignation up to the unpaid amount of the total amount owed by him in respect of the Judgment.

Behar v. Quaker Ridge Golf Club, Inc., 2016 NY Slip Op 26363 (Sup. Ct., West Co., Wood, J., October 4, 2016)

The Court summarized the facts elicited at trial:

Quaker Ridge has been operating a golf course at its current location since on or about 1918...The area where the Behars' home is located was undeveloped land with trees until their house was built in 2007, together with approximately eleven other homes by Glickenhaus-Westchester Development, Inc...According to the Behars, they sought a home in Scarsdale because of the school system...They also built their home next to Quaker Ridge because "it would be quiet, that there was a quiet street to live on"...The Behars contracted to purchase their home from Glickenhaus on or about April, 2006, and closed title on November 21, 2007. They moved in immediately thereafter...Up until a storm in June of 2008, "there was no significant issue with golf ball incursion" according to the Behars...That storm brought down several tall trees on the property line between the Behars' back yard and Quaker Ridge's property—more specifically, golf hole No.2. Shortly thereafter, the Behars claim, "All of a sudden, we were bombarded by golf balls"...Later the same year and into the next year, the Behars installed an in-ground pool and patio on their property. The permit was issued on August 19, 2008, and the certificate of occupancy was issued on July 24, 2009...As a result of the excavation during that time period, the plaintiffs were unable to use their back yard...The Behars investigated various netting and fencing options, and installed a 25 foot high retractable net in 2009, but received a violation from the Village of Scarsdale, dated September 2, 2009...and were required to remove it.

Subsequently, Quaker Ridge sought Village of Scarsdale approval for a forty-foot high net to prevent golf balls from leaving its property and entering the Behar property. The Village approved the 40-foot net on October 27, 2010. In the spring of 2011, the Behars installed a group of 42-46 foot high Norway Spruce trees...They claim that the golf ball problem continued unabated from June 2008 until the Second Department's injunction was issued in June, 2014.

In response to the ruling of the Second Department, from June 18, 2014 through June 15, 2015, Quaker Ridge moved the tee box on Hole #2 forward, to be more even or parallel with the Behar property...During this period, as conceded by plaintiffs, no golf balls entered the Behar property from Quaker Ridge...Also, during the first half of 2015, Quaker Ridge made modifications to its course. It planted three large spruce trees to the right side of the original tee box area, and reconfigured the fairway and rough areas on Hole #2 to add landing area to left side of the fairway...The center line of the fairway was moved to the left, and the tee box was lowered and also moved to the left...Quaker Ridge also uprooted and transplanted three extremely large trees to block off the Behar property—one of approximately 100 feet, and two of approximately 75 feet in height—from other areas on the golf course...These modifications to Hole #2 cost Quaker Ridge nearly $600,000[.]

On or about June 27, 2015, Quaker Ridge began to use exclusively "double logo" golf balls for play on Hole #2, and stationed an employee on the second hole to obtain an accurate count of golf ball incursions onto the Behar property...Over the next 118 days, through October 22, 2015, Quaker Ridge counted 40 possible incursions...This is consistent with the Behars' count of 38 golf balls retrieved by them from their property for the same time period[.]

On August 8, 2015, the Behars signed a petition, also approved by all of their eleven neighbors, urging the Village of Scarsdale Planning Board to deny any extension of the Quaker Ridge net permit, and to deny any expansion of Quaker Ridge's net itself. The Behars wrote on the page of the petition that they signed:

"In the spring of 2011, we planted a row of 20 45 foot tall Norway Spruces, creating a natural screen taller than the temporary 40 foot net, thereby making the net obsolete. Under no circumstances should the net be heightened or extended as that was never the intent of the planning board."[.]

Despite the significant reduction in golf ball intrusions, the Behars seek future damages based upon their expert's opinion that their property value has been permanently diminished. They argue that this calculus is justified by their uncertainty of whether the permanent injunction is personal to the Behars themselves or whether it runs with the land. They also claim that even if it runs with the land, there is a permanent loss because Quaker Ridge could violate the permanent injunction[.]

The prior proceedings:

In this action for injunctive relief and to recover damages for nuisance and trespass, by order entered July 10, 2012, the Supreme Court, Westchester County (Giacomo, J.) denied the branches of Behars' motions for a permanent injunction and for summary judgment on the issue of liability, and granted Quaker Ridge summary judgment in its favor. The Second Department reversed, and held that the plaintiffs were entitled to judgment as a matter of law in private nuisance because Quaker Ridge operated its golf course in a manner that failed to sufficiently abate the number of golf balls landing on the Behars' property, producing an injury that rendered their enjoyment especially uncomfortable and inconvenient. The Second Department also held that the Behars were entitled to judgment in trespass, because the golf ball incursions occurred with such frequency and for such a long period of time that Quaker Ridge's failure to take steps to sufficiently abate the situation constituted willfulness. The Second Department granted the Behars a permanent injunction enjoining Quaker Ridge from operating its course in such a manner that constitutes a private nuisance and causes trespass upon the Behars' property, and reversed the dismissal of their complaint as ordered by the Trial court.

The Decision of the Second Department upon a prior appeal:

In its decision on Quaker Ridge's summary judgment motion entered July 10, 2012, the only reference by the Supreme Court to the number of golf ball incursions upon the Behars was: "Plaintiffs argue that they are entitled to summary judgment on their nuisance claim by establishing that generally about 3-4 golf balls fell on their property each day between May 2011 and June 2011." Later in the same decision, the Supreme Court noted, "At the outset the Court notes that the facts of this case are undisputed."

In its decision reversing the Supreme Court, the Second Department made no separate fact-finding of its own with regard to the number of balls, nor did it address where they landed on the Behar property (perimeter or more commonly occupied areas). As already noted, its nuisance finding is solely that Quaker Ridge failed to reduce the number of golf balls landing on the Behars' property. Its trespass finding states that "the plaintiffs' submissions demonstrate that golf balls have invaded their property with such frequency and over such a long period of time." This court must assume that this refers to the Supreme Court's "undisputed" 3-4 golf balls per day over a two month period in 2011. Accordingly, the Second Department appears to have been relying upon Quaker Ridge's ball count admissions of 103 balls between April 2, 2011 and June 28, 2011, which were annexed to affidavits submitted by Quaker Ridge's ball counters.

* * *

Relying upon the Second Department's decision of June 18, 2014, Quaker Ridge is liable for nuisance and trespass for the three-month period of April 2, 2011 through June 28, 2011. As the Second Department made no other findings of fact that impact liability, this court will consider and determine what damages were sustained by the plaintiffs during the relevant subject three month time period, and how they are measured. In the interest of judicial economy, also to be considered is the issue of liability for the period of June, 2008 through April 1, 2011, and June 29, 2011 to the conclusion of trial, and any concomitant damages arising therefrom. Finally, the court will consider whether the Behars have suffered any permanent damages.

The court notes that it is charged with determining a damage award based solely upon the findings of the Second Department, and that in general, it should not be unexpected that any house abutting a golf course—including the Behars' house—would from time to time, receive three, four, five, or more balls on a given particular day of poor swings, and that there could be no liability on the part of a golf course for trespass, nuisance or concomitant damages.

The legal template for measure of damages:

The proper measure of damages for trespass is determined by assessing the value of the area actually occupied by the trespasser...for the period of time that the owner is kept out of possession...These damages may be determined to be the greater of either the rental value or comparable useable value, whichever is greater...Here, there is not a physical trespass by human beings, but the plaintiffs' theory of trespass is premised on the golf balls that have randomly landed on their property.

The proper measure of damages for private nuisance is more subjective in nature because it involves as an essential element the interference with the land owners' right to use and enjoy their land...In this case, minimal physical damages were alleged—an external light, a roof tile, and a window screen. No monetary value was offered as to those items. When the damages are permanent, the court's task is easy, in that it merely looks at the diminution of the market value of the property...Where the injury is temporary, the task is much harder. The damages are the reduction of the rental or usable value of the property...Frequently, as here, there is no reason to think that the property owner has ever contemplated renting, so the task of this court is to weigh the plaintiffs' subjective claims of interference, integrate them with their expert's opinions and assumptions of how this causes a loss of rental value, and determine what the proper amount of damages is.

And applied the law to the facts:

Turning to the April through June 2011 period, the ball count that was admitted by Quaker Ridge in the affidavits of their ball counters is 103 balls over 87 days. Plaintiffs argued in their submissions supporting their summary judgment motion that this count, standing alone, justified a finding that the golf ball intrusions exceeded the [governing] standards, and so the Second Department held. A close look at the ball counts reveals several noteworthy days of concern: Tuesday, May 24, 2011, 5 balls; Thursday, June 2, 2011, 14 balls; Friday June 3, 2011, 7 balls; Saturday, June 18, 2011, 5 balls; Friday, June 24, 2011, 5 balls. On each of those five (5) days, at least five (5) balls landed on the Behar property. On five more days between May 20 and June 26, at least four balls landed on the Behar property. Again, these are the counts admitted by Quaker Ridge; the Behars' count reflects high volume on May 7 and 8, and also the first week of July.

What is also clear from comparing ball counts by the Behars and Quaker Ridge, is that it is an inexact science. The Behars did not always find the balls on the same day that they were hit, and Quaker Ridge did not have access to the Behars' property to determine whether an errant ball actually landed on the Behar property. On certain days, each party counted more or less than the other party—with the other party's numbers for those dates being more favorable to their case than their own. This also demonstrates that many balls are not actually interfering with the Behars' lives, as some were only discovered upon inspection of the yard and perimeter areas, or were discovered after a day or even a week that they were not using their yard...Nonetheless, the substantial numbers cited for the dates above are such that the Behars would not be able to substantially enjoy their property. Those dates fall within a three month period.

The court has reviewed the vastly differing expert testimony and reports proffered by plaintiffs' expert, Daniel Sciannameo and defendant's expert, James Levy. Particularly as pertains to this limited time period, neither are directly on point, nor especially helpful in assessing loss of rental value. However, the court has based some of its conclusions on pages 32 of Sciannameo's report...which cites annual temporary damages of $146,205 for July 1, 2010-June 30,2011 and $154,755 for July 1, 2011-June 30, 2012 (90% loss factor), and pages 4 and 43-44 of Levy's report...which cites annual temporary damages for July 1, 2010 to June 30, 2011 as $3,749-$5,623 and July 1, 2011 to June 30, 2012 as $3,960-$5,940 (10-15% loss factor). To assess damages for the proper three-month time period, the court needs to do more than math, by simply taking approximately one-fourth of whatever yearly rent figure it adopts. It must account for the fact that the subject time period is spring and summer—a higher use period, a longer daylight period—deciding whether to apply April through June lost backyard use figures (averaging to 26.33, not the full-year average of 21.9) as cited by Levy on page 43 of his valuation section of his report. If so, then that loss factor must be adjusted to reflect Levy's and Sciannameo's other findings and assumptions.

The first of those assumptions is starting rent. For the Behars, Sciannameo asserts it is $205,200; Levy's starting rent is $170,400. After considering the testimony and exhibits, the court adopts $186,000, or $15,500 per month as the starting rent. The court disagrees with the Sciannameo assumption of 100% peak loss of use factor during golf season and 50% loss during off peak season. However, since the three months at issue are during peak golf season, an 80% loss of use factor will be applied. The Levy loss of use calculations on page 43 of his report are inappropriate because the formula is inequitable. For the month of June, Levy cites 15 hours of potential backyard use, 15 hours of golfing hours, but cites a 60% loss factor for use. Thus, he discounts from 100% of the usable hours to 60%, factoring in the 9 other hours of the day. Inexplicably, that is discounted further to 47%, when his lost use percentage factor is applied. In fact, it is more appropriate to consider the percentage of usable hours that are affected, to ensure that Quaker Ridge does not receive the benefit of discounting for nighttime hours. However, there are days during this time that golf was not played (ie. Mondays, rain days) and days that the Behars reported no balls. The court also notes that in detriment to Quaker Ridge's position, Levy likely overestimated the golfing hours. Thus, for these months an 80% loss of use factor is appropriate.

Lastly, a determination must be made as to what portion of the total property was affected by the nuisance. The Behars argue that they could use very little of their home, and Sciannameo claims that there is a 90% loss factor—in other words, the Behars only retained 10% use of their property. This opinion is emphatically rejected. Likewise, Sciannameo's conclusion that the Behar's home is essentially impossible to rent is equally implausible—virtually ignoring the fact that the Scarsdale school district is highly desirable...The Scarsdale schools alone—whether they live up to their reputation or not—make Sciannameo's 90% and 45% rental loss estimates exaggerated, hyperbolic, and unreliable. Sciannameo's estimates are: without any empirical support; fail to consider actual ball counts...ignore pre-storm and post-storm levels of intrusion...and in the case of a one-year period between June 18, 2014 and June 15, 2015 when no incursions occurred, still finds a 90% loss during the golf season...His entire analysis is based upon what the Behars and their attorney told him, however, at least for this one-year period, he was misinformed...Tellingly, Sciannameo advocates a novel new standard—one that assumes and adopts a Post-Traumatic Stress Disorder standard, which is contrary to both the Court of Appeals' opinion in [a 1970 decision], common law, and common sense—that frequency of actual intrusions are irrelevant "once you've lost the use through the fear and risk factor"...Both at trial and in his report, Sciannameo made wild, sweeping conclusions without any basis, which was clear from his answers during cross-examination. For example, he failed to factor in the significant modifications made in 2015 by Quaker Ridge, which he dismissingly termed, "Band-aid measures"...Then, he seemed completely detached from, or unaware of major modifications to the second hole and ignored their successful remedial impact[.]

* * *

On the other hand, Quaker Ridge and Levy correctly assert that the Behars' loss is confined to the exterior of the house—primarily the back yard—and that as such, the loss factor is more appropriately between 10 and 15%. The court will adopt the higher 15% value for the area affected by the intrusion and concomitant inconvenience for April through June 2011. Thus, for the three affected months, total rent would be $46,500; after 80% peak loss of use factor, adjusted rent is $37,200; after 15% value of the affected area is applied, the lost rental value is $5,580.

Having now decided damages relating to the period of time addressed by the Second Department's decision, the court now looks to the two-month period between the June 17, 2008 storm and the beginning of the pool construction (August 19, 2008). The record shows that one or two communications occurred between Leon Behar and Steven Rittmaster of Quaker Ridge about golf balls shortly after the storm. While there was obvious disagreement between the Behars and Quaker Ridge about who was responsible for replacing the trees that fell, there is nothing to indicate that intrusions at this early stage were "the immediate or inevitable consequence of what [Quaker Ridge] willfully does, or which [it] does so negligently"...Likewise, a private nuisance claim for this time cannot be established without Quaker Ridge having notice of an ongoing trespass, because a pattern or recurrence of objectionable conduct is required...During these two months following the storm, no pattern of objectionable conduct was established. Thereafter for nearly one year between August 19, 2008 and July 24, 2009, the Behars' back yard was under construction as a result of their pool installation. As a result, any trespass during that time period was negligible and did not constitute a private nuisance, because it did not impact the Behars' rights or use and enjoyment of their property to any significant degree. Also, the Behars did not keep a ball count until April 2010 when they commenced this action...In assessing this time period, the court examined the testimony of Leon Behar, Judson Seibert, and Robert Musich, and the number of balls collected, and finds that no award is appropriate for this time period, as there is no evidence that Quaker Ridge was made aware by the Behars that the problem still existed or was ongoing, until commencement of this action or shortly prior thereto. The Behars' attorney did not discuss possible legal action with Musich when they spoke a month before commencement (March 9, 2010), during which conversation Musich was cooperative in agreeing to plant buffer vegetation and trees along the boundary of the properties to assist with the Behars' area variance application...Then, for the approximately one-year period from commencement to April 1, 2011, the court also factored in the so-ordered stipulation entered into by the parties (Murphy,J), which limited Quaker Ridge's tee times in June, July, and August, 2010, as well as the testimony elicited from Leon Behar...Notably, that the latter portion of this time period directly preceded the time period that was the subject of the findings of the Second Department.

Rather than citing specific ball counts, it is held that there was a trespass and ongoing private nuisance, at least for the months of May, September, and October 2010, which immediately precede and follow the finding of the Second Department. Applying the same criteria cited above, the court notes that this is period was during golf season, but not peak season. Given the shorter daylight hours and the fact that most of this period is not the summer, and children are in school, the court finds that the peak/non-peak loss of use is only 25%. All other calculations remain the same. For the three affected months, total rent would be $46,500; after 25% loss of use factor, adjusted rent is $13,950; after 15% value of the affected area is applied, the lost rental value is $1,743.75 for damages for this period. All testimony and exhibits regarding the Behars' addition of the row of Norway Spruce trees, sprinkler, and retractable net, including attorney's bill have been considered, however no portion of the cost of these items will be awarded. Specifically, while the Second Department found that the Behars were subjected to trespass and nuisance at or around this time, this court does not find the purported remedial measures taken by the Behars to be reasonable or necessary. While Leon Behar testified that he was compelled to buy the trees after seeing the "puny 30-foot trees that were installed on the club's side of the property, as was mandated by the Village" he acknowledged that they were for immediate relief, and that he installed the highest trees available for purchase that his property could sustain...Yet the highest point of those trees extended at best two to six feet above the forty-foot net installed by Quaker Ridge, and only offer minimal protection beyond that which is more comprehensively provided by the net. The court is not convinced that the Behars' motivation in installing the trees was primarily for safety, rather than aesthetics, particularly given their statement on the Scarsdale Manor Homeowners Association petition against the extension of the net...Also, at the time that the Behars planted their trees, the trees initially planted by Quaker Ridge—while not as tall as the Behars' Norway Spruces—had not had any time to grow and mature. There was every reason to expect that the Quaker Ridge trees would grow within a few years to a height at or above the net. Lastly, a sprinkler and drip system—while convenient, is not the only means of keeping the trees watered. Nearly all other aspects of the $11,068.20 bill...reflect aesthetic lawn improvements, which are not compensable.

Next, during the period between June 29, 2011 to June 18, 2014, this matter was still pending. Both sides were represented by counsel, but the record reflects that no notices were given by the Behars to Quaker Ridge regarding the claimed golf ball intrusions...That is not to say that Quaker Ridge was unaware that occasional golf balls were intruding, as the Behars brought this action, and Mr. Behar had a brief phone conversation with Robert Musich of Quaker Ridge about the balls...and a phone call and email with Steven Rittmaster...and an unrelated call. However, rather than advising Quaker Ridge of particularly troubling numbers on any given day, or providing notice of their count at the end of each week or month, the Behars, apparently just collected golf balls and kept them to produce them at trial...Importantly, most of this period of silence took place after Quaker Ridge's forty-foot high net was installed, and both the Behars and Quaker Ridge had planted rows of sizable trees on their respective sides of the net. As a result, while Quaker Ridge was on notice that the trespass and nuisance occurred before the net and trees were installed, the unexplained silence from the Behars for nearly three years severely undermines their claims that they were being "bombarded" and that balls were "raining" down on them.

The testimony of Leon Behar further complicates the record, because he acknowledged that he had limited contact with Quaker Ridge. He stated that he first spoke to Robert Musich, then Steven Rittmaster about golf ball incursions, then spoke with Steven Rittmaster about an incident where a golfer urinated on his property...Musich testified that Leon Behar spoke with him about golfers urinating when they retrieved their golf balls in the one conversation he had with him...The Scarsdale Police dispatch log generated from Leon Behar's reporting of the incident reflects that it occurred on June 6, 2008...All parties agree that the storm that fell the large trees creating a void allowing the increased golf ball incursions was on June 16 or 17, 2008...Therefore, Leon Behar's recollection of his conversations with Quaker Ridge representatives is faulty, because he testified that he was "getting bombarded" with golf balls and it had been "raining golf balls" prior to the urination incident[.]

The next time period for the court to consider is from June 18, 2014 through June 18, 2015, when Quaker Ridge relocated the tee boxes for Hole #2. The Behars admit that they had no golf ball incursions during that time...Thus, the court finds that no damages were sustained for this time period.

The last period of time the court will consider is from June 19, 2015 to March 11, 2016, which was the last day of trial. During this period, Quaker Ridge resumed use of the original tee boxes for Hole #2 after it made extensive modifications to the fairway, trees were planted along the right side of the tee box, and three very large trees were moved from other areas of the golf course to shield the Behar property from errant golf balls...During this time, both parties kept track of golf ball incursions or possible incursions. Beginning on June 27, 2015, Quaker Ridge exclusively utilized unique "double logo" golf balls on Hole #2.

Quaker Ridge's count from June 27 to October 22, 2015...was 40 balls, which averages .34 per day, and 2.37 per week. The Behars' count is nearly identical, collecting 38 total balls during calendar year 2015, of which 36 were double logo, and 2 were not the double logo balls...Using the numbers that the Behars cite—which by definition is all that could cause them inconvenience and intrusion—the averages drop to .32 per day, and 2.23 balls per week. Almost five (fall and winter) months elapsed between that count and the end of trial in this matter, and no additional balls were claimed to have intruded, further debunking the assumptions and conclusions of plaintiff's expert, Sciannameo. Using either party's count, the difference from 2011 is drastic. Ten balls per month is eminently reasonable for any homeowner adjacent to a golf fairway to expect as a tradeoff for the benefits of living next to a golf course, and is consistent with "the occasional—'once or twice a week' errant golf ball that was found on plaintiff's property" in [another case] which was held not to be a sufficient impairment of that plaintiff's rights. Therefore, for this last time period, the court finds no damages were incurred.

Noting as to permanent damages that:

The final component of the compensatory damages to be considered is plaintiff's claim for permanent damages. Among Sciannameo's unavailing opinions is that there is a diminution in fee value because Quaker Ridge has a pending appeal, or might violate the permanent injunction, or that the injunction may not run with the land. This is nothing more than mere speculation, and the court surely cannot award damages to the Behars based on the possibility that the decision of the Second Department upon which damages have been awarded herein might be reversed by the Court of Appeals. Like Leon Behar, Sciannameo opined that the temporary injunction had been violated because, "balls periodically were still invading the Behar property"...Notably, among the factors cited by Sciannameo for a purchaser wanting a discount, is the net itself: "And they're going to look at the netting back there. Really, who wants that? Who wants to deal with these issues, these headaches? I would rather pay more, I would rather pay full boat and buy another property"...Missing from Sciannameo's analysis is the fact that some of these factors—including a level of intrusion greater than the current one—existed before the 2008 storm that set Quaker Ridge's liability in motion, and his analysis fails to recognize that the Behars chose to build a house on this property adjacent to a golf course that was in operation since 1918, and to install an in-ground pool despite those factors.

Admonishing that:

The position of the Behars and their expert fundamentally misunderstands the nature of tort law and compensatory damages, which is to restore an injured plaintiff to the position before the tort occurred...The Behars are entitled to be made whole for damages caused as a result of Quaker Ridge's negligence during the time for which they were found liable by the Second Department and this court, and nothing more. They are not entitled to move next to a golf course and to never suffer the intrusion of a golf ball. By the Behars' own admission, Quaker Ridge abated the level of intrusions cited by the Second Department, and they have less golf ball intrusions than they had—even before the 2008 storm. The pendulum is back to the middle. There is no basis for the court to now put the Behars in a better position than they were in on June 15, 2008. They live next to a golf course.

For these reasons, even had the Behars not opposed Quaker Ridge's net on August 8, 2015, they still failed to establish any permanent damages as a result of the liability found by the Second Department in its decision and order entered June 18, 2014.

And stating, as to punitive damages, that:

Punitive damages may be awarded where the defendant is guilty of "quasi-criminal conduct," "utterly reckless behavior," "a malicious intent to injure plaintiffs," or of "gross, wanton or willful fraud"...While the defendants had knowledge of its golf ball intrusions, and the Second Department characterized Quaker Ridge's failure to abate the problem as "willful" there is no evidence that defendant's operations were utterly reckless, malicious or fraudulent. These elements must be present in order to appropriately award punitive damages...Finally, Quaker Ridge's initial resistance to make modifications to its course and its defense of this action were premised upon the club's belief that the Behars were responsible for the loss of the natural tree barrier that was lost in the June 2008 storm. That resistance itself also does not rise to the level of recklessness, fraud, or maliciousness, but it was reasonable...In sum, while Quaker Ridge is liable for compensatory damages as noted herein, punitive damages are not appropriate.

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