Dalton v. MacDonald

In an action to recover damages for personal injuries, the defendant moves for summary judgment dismissing the complaint, pursuant to CPLR 3212:Papers Considered1. Notice of Motion/Affirmation of Eric D. Feldman, Esq./Exhibits AF;2. Affirmation of Edward J. Mitchell, Esq. in Opposition/Affidavit of Loretta Dalton/Exhibit 1;3. Reply Affirmation of Eric D. Feldman, Esq./Exhibits A-C.DECISION & ORDERFactual and Procedural Background

*1 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