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 [1970]). 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 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.” Plaintiffs 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 *1254the defendant country club. Between the plaintiffs 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 plaintiffs 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] plaintiffs backyard,” were minimal trespasses that would not warrant the granting of an injunction and could not sustain recovery for the plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs house (id. at 317).
Here, unlike in Nussbaum, Midcourt had notice of prior high-velocity intrusions onto the premises of the Perneo 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 Perneo 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 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 Perneo defendants, includ*1255ing 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 eye5 5 5 (id.), especially given the evidence of prior impacts at the premises of the Pemco defendants and the opinion of plaintiffs 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 [2004]). 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 [2007], rearg denied 10 NY3d 745 [2008]).
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 arise5 55 (Clementoni v Consolidated Rail Corp., 8 NY3d 963, 965 [1960], 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). Present — Fahey, J.P, Peradotto, Lindley and Martoche, JJ.