ALBANY – A golfer did not have a duty to yell “fore” or otherwise warn players nearby when firing off an errant shot that took out the eye of a playing partner, the state Court of Appeals ruled yesterday.

Injured golfer Azad Anand assumed certain risks by voluntarily playing golf, such as being struck by a ball hit by his friend and fellow doctor Anoop Kapoor, the unanimous Court ruled in Anand v. Kapoor, 222.

“Here, Kapoor’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 Anand consented,” the Court said in a memorandum decision. “Rather, the manner in which Anand 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.”

Only if plaintiffs are injured in a sport through “reckless or intentional conduct or concealed or unreasonably increased risks” will they not be deemed to have assumed the risks of voluntary participation in that activity, the Court said, quoting Morgan v. State, 90 NY2d 471 (1997).

Dr. Anand, a Long Island doctor, was playing with fellow doctors and friends Dr. Kapoor and Dr. Balram Verma on the morning of Oct. 19, 2002, at Dix Hills Park Country Club in Nassau County.

Dr. Kapoor said in a deposition that while he had played golf for a long time he was no “expert.”

While playing his ball from the rough on the first hole of the nine-hole course, Dr. Kapoor shanked a shot that hit Dr. Anand, who was 15 to 20 feet ahead and to the right seeking his ball on the fairway.

The shot detached Dr. Anand’s retina and left him blind in one eye.

A shank is a shot that flies off a club almost perpendicularly to the target, straight to the right for a right-handed player like Dr. Kapoor, and to the left for a left-hander.

Dr. Kapoor said he called out a warning after hitting the shot, but his playing partners said they never heard it. Dr. Kapoor also acknowledged that he was not certain where his playing partners were when he swung at the ball that injured Dr. Anand.

Dr. Anand sued, but in May 2007 Supreme Court Justice Joseph DeMaro in Nassau County (See Profile) granted summary judgment to Dr. Kapoor, dismissing the lawsuit on grounds that the defendant was not negligent and that Dr. Anand had, in any case, assumed the risk of injury by voluntarily playing.

The Second Department affirmed 3-1, finding that Dr. Kapoor could not be held liable though he apparently ignored the “universally recognized” custom of golfers yelling “fore” when their shots could endanger other players (NYLJ, April 29, 2009). The appeals court said that predicating liability on whether the golfer yelled “fore” after hitting an errant shot “is inconsistent with the doctrine of primary assumption of the risk” as it has been developed by the Court of Appeals beginning in 1972.

Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo, Susan Phillips Read, Robert S. Smith, Eugene F. Pigott Jr. and Theodore T. Jones joined in the high court’s unsigned ruling.

Steven Cohn of Carle Place represented Dr. Anand.

William D. Hartlein of Ray, Perrone & Hartlein in Mineola represented Dr. Kapoor.

Substitution of Counsel

In another ruling yesterday by the Court in its last hand-downs of 2010, the judges upheld the convictions of two defendants who claimed that judges wrongly denied their requests for the assignment of new counsel.

The Court, in one ruling encompassing People v. Porto, 219, and People v. Garcia, 220, decided that the judicial examination of the defendants’ requests met the “minimal inquiry” standard of People v. Sides, 75 NY2d 822 (1990).

Sides allows substitution of counsel only for “good cause” such as an attorney being assigned to represent two clients between whom there is a conflict and in instances where lawyers are unfamiliar with a defendant’s mental health history.

“Here, neither appeal presents these two situations, nor other factors meriting substitution of counsel,” Judge Jones wrote for the Court.

Both men unsuccessfully sought new counsel late in their proceedings. William Porto was convicted of a Manhattan burglary and Rodriguece Garcia of a Bronx robbery.

The Court ruled 7-0 in Garcia and 6-1 in Porto, where the dissenting Judge Pigott said the defendant’s request for a new attorney was not considered fully.

The trial judge asked Mr. Porto’s attorney if it was true that Mr. Porto was “frustrated” about a lack of communication between the two before and during the trial.

Judge Pigott said it did not qualify as even a “minimal inquiry” to ask the attorney without seeking further explanation from Mr. Porto himself. It was, “in essence hearing only one side of the story,” Judge Pigott wrote in calling for a new trial for Mr. Porto.

Bronx Assistant District Attorney Cynthia A. Carlson argued for the prosecution in Garcia and Manhattan Assistant District Attorney Sara M. Zausmer in Porto.

Matthew L. Mazur of the Office of the Appellate Defender argued for Mr. Garcia and Carl S. Kaplan of the Center for Appellate Litigation represented Mr. Porto.

Also yesterday, the Court in Matter of Kowaleski v. New York State Department of Correctional Services, 221, affirmed two lower courts by throwing out an arbitrator’s decision that Barbara Kowaleski should be dismissed as a state prison officer for insubordination and other verbal misconduct in 2004.

Ms. Kowaleski contended at the start of the arbitrator’s hearing that she was facing dismissal from her job at the Hale Creek Correctional Facility in Johnstown, N.Y., in retaliation for reporting an assault by a fellow corrections officer against an inmate in 2002.

The arbitrator said he had no authority to consider retaliation as an affirmative defense in Ms. Kowaleski’s case, but he promised to take that under consideration when he made his decision.

The Court disagreed.

Under Civil Service Law §75-b, also known as the “whistleblower law,” an arbitrator is not only allowed but “required to dismiss a disciplinary action based solely on retaliatory motive, regardless of the employee’s guilt or innocence,” Judge Ciparick wrote for the unanimous panel.

“In order to be effective, whistleblower protections like those embodied in Civil Service Law §75-b must shield employees from being retaliated against by an employer’s selective application of theoretically neutral rules,” she wrote.

The Court ordered a new disciplinary hearing.

Lewis B. Oliver Jr. of Oliver & Oliver in Albany represented Ms. Kowaleski.

Assistant Solicitor General Frank K. Walsh argued for the Department of Correctional Services.