Carnibucci v. Marlin Firearms Co.

• Decision Date: 04 March 1976
• Citation: Carnibucci v. Marlin Firearms Co., 380 N.Y.S.2d 807, 51 A.D.2d 1067 (N.Y. App. Div. 1976)
• Parties: Karl L. CARNIBUCCI, Sr., Individually and as parent and natural guardian of Karl L. Carnibucci, Jr., an infant, Respondent, v. MARLIN FIREARMS COMPANY et al., Appellants, and Westons Shoppers City of Albany et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 807

380 N.Y.S.2d 807

51 A.D.2d 1067

Karl L. CARNIBUCCI, Sr., Individually and as parent and naturalguardian of Karl L. Carnibucci, Jr., an infant, Respondent, v.MARLIN FIREARMS COMPANY et al., Appellants, and Westons Shoppers City of Albany et al., Respondents.

Supreme Court, Appellate Division, Third Department.

March 4, 1976.

Lyons & Duncan, Albany (Condon A. Lyons, Albany, of counsel), for defendant-appellantThe Marlin Firearms Co.

Ainsworth, Sullivan, Tracy & Knauf, Albany (John E. Knauf, Albany, of counsel), for defendant-appellantRemington Arms Co., Inc.

E. Stewart Jones, Troy (E. Stewart Jones, Jr., Troy, of counsel), for plaintiffs-respondents.

Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for defendant-respondent Colljack's Sporting Goods Store.

Before KOREMAN, P.J., and SWEENEY, MAHONEY, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Plaintiffs' complaint alleges causes of action in negligence and breach of warranty against the appellants arising out of an accident on November 29, 1967, when it is alleged that a semi-automatic .22 caliber rifle (manufactured by the Marline Arms Company and sold to the infant Karl Carnibucci, Jr. by Westons Shoppers City, who had obtained the gun from Harry T. King Wholesale) loaded with .22 caliber long ammunition (manufactured by the Remington Arms Company and sold by Colljack's Sporting (Goods Store) misfired and subsequently the cartridge exploded when said infant was inspecting the rifle, causing him to lose his left eye.

The appellants limit their appeal to so much of the order of Special Term as compels them to furnish 'information relating to claims of a similar nature, whether such claims were made prior or subsequent to the subject action.'

The appellants primarily contend that the language quoted hereinabove is too vague or too broad and, while the order when considered in the light of Special Term's decision is not seriously lacking in specificity, the plaintiffs concede that the discovery is to be limited to a similar rifle and similar cartridge as were being used by the infant at the time of the accident.In view of that concession, the order should be modified so as to expressly coincide with the intent of the plaintiffs as to discovery of claims of a similar nature and hopefully expedite pre-trial discovery.

The appellant, Remington Arms Company, contends that subsequent similar claims are not a proper subject of discovery.This contention is...