Chiapperini v. Gander Mountain Co.

• Decision Date: 23 December 2014
• Docket Number: 14/5717
• Citation: 2014 N.Y. Slip Op. 24429,13 N.Y.S.3d 777,48 Misc.3d 865
• Parties: Kimberly CHIAPPERINI, as representative of the estate of Michael Chiapperini, et al., Plaintiffs, v. GANDER MOUNTAIN COMPANY, Inc., et al., Defendants.
• Court: New York Supreme Court

48 Misc.3d 865

13 N.Y.S.3d 777

2014 N.Y. Slip Op. 24429

Kimberly CHIAPPERINI, as representative of the estate of Michael Chiapperini, et al., Plaintiffs

v.GANDER MOUNTAIN COMPANY, Inc., et al., Defendants.

14/5717

Supreme Court, Monroe County, New York.

Dec. 23, 2014.

Michael D. Schissel, Esq. and Diana E. Reiter, Esq., Attorneys for Plaintiffs.

Brian Stapleton, Esq. and James M. Paulino, II, Esq., Attorneys for Defendant Gander.

Opinion

J. SCOTT ODORISI, J.

This lawsuit arises out of the 2012 West Webster Christmas Eve ambush and the resulting deaths and personal injuries to first responders. Pending before this Court are: (1) Defendant Gander Mountain Company, Inc.'s August 25, 2014, motion to dismiss; and, (2) Plaintiffs' September 18, 2014, motion for the release of the Grand Jury minutes of the state criminal prosecution of Defendant Dawn Nguyen.¹

Based upon a review of: Defendant Gander Mountain Company, Inc.'s Notice of Motion, dated August 25, 2014, Attorney Affirmation of James Michael Paulino, II, Esq., with exhibits, dated August 25, 2014, Affidavit of Kevin R. McKown, dated August 22, 2014, and Memorandum of Law, dated August 25, 2014—all submitted in support of the dismissal motion; Plaintiffs' Brief in Opposition, with exhibits, dated October 6, 2014—submitted in opposition to the dismissal motion; Defendant Gander Mountain Company, Inc.'s Reply Memorandum of Law, dated October 10, 2014—submitted in further support of the dismissal motion; Plaintiffs' Notice of Motion, dated September 18, 2014, and Attorney Affirmation of Donald W. O'Brien, Esq., with exhibit, dated September 18, 2014—all submitted in support of the motion for release of the Grand Jury minutes; the Letter of Stephen X. O'Brien, ADA, dated October 9, 2014—submitted in opposition to Plaintiffs' motion, as well as upon oral argument, this Court hereby: (1) DENIES IN LARGE PART AND GRANTS ONLY IN LIMITED PART Gander Mountain Company, Inc.'s dismissal motion; and, (2) GRANTS ONLY IN LIMITED PART Plaintiffs' motion for release of the Grand Jury minutes—all for the reasons set forth hereinafter.

LAWSUIT FACTS

Background Information²

On June 6, 2010, Defendant Dawn Nguyen (“Nguyen”) agreed to buy guns for Decedent William Spengler (“Spengler”)—a convicted manslaughter felon. Nguyen and Spengler were present together at Defendant Gander Mountain Company Inc.'s (“Gander”) Henrietta store perusing long guns. When the pair was approached by a salesperson, Spengler, not Nguyen, refused any assistance. Nguyen ultimately bought 2 firearms—a Bushmaster semi-automatic rifle and a Mossberg .12 gauge shotgun—by paying $1,425.58 in cash, which was provided by Spengler. To finalize the sale, and with Spengler present, Nguyen completed certain required forms attesting that she was the true gun purchaser and intended end user. Nguyen did not buy any ammunition or make any other inquires about operation of the guns. Spengler took the guns off of the counter and left the store with them, and Nguyen never again possessed them.³

In the early morning hours of December 24, 2012, Spengler killed his sister, set his West Webster home on fire, and then used the same Bushmaster rifle Nguyen bought from Gander to shoot volunteer firefighters Michael Chiapperini (“Chiapperini”), Tomasz Kaczowka (“Kaczowka”), Joseph Hofstetter (“Hofstetter”), and Theodore Scardino (“Scardino”) who were all responding to a 911 dispatch. Tragically, Chiapperini and Kaczowka died and Hofstetter and Scardino were seriously injured. Spengler committed suicide before being apprehended.

On April 4, 2013, Nguyen was indicted in state court for Falsifying Business Records in the First Degree [Penal Law (“PL”) § 175.10 ]. Nguyen was also charged federally. On April 15, 2014, Nguyen was convicted in state court after a jury trial.⁴ Thereafter, and on June 26, 2014, Nguyen pleaded guilty in federal court to the whole indictment, namely: (1) Making a False Statement in Relation to the Acquisition of Firearms [18 U.S.C. § 922(a)(6) ]; (2) Disposition of Firearms to a Convicted Felon [18 U.S.C. § 922(d)(1) ]; and, (3) Possession of Firearms by an Unlawful User [18 U.S.C. § 922(g)(3) ].⁵ One of the theories of criminal liability in both cases was that Nguyen falsified the forms to deceive Gander as to the identity of the true end user, which fraudulent intent also included an intent to conceal a crime.⁶

Procedural History

The present action was commenced on May 20, 2014, and in general alleges that Gander unlawfully sold the guns to both Nguyen and Spengler as it knew, or should have known, it was an illegal straw purchase for an improper buyer given Spengler's involvement [Paulino Atty. Aff., Ex. A, ¶¶ 1, 3, 44, 55]. More specifically, the Complaint contains the following causes of action, which Plaintiffs designated as “Counts:”

*1—Negligence against Gander;

*2—Negligent entrustment against Gander;

*3—Negligent entrustment against Nguyen;

*4—Assault and battery against Spengler's estate;

*5—Negligence per se against Gander;

*6—Negligent training and supervision against Gander;

*7—Public nuisance against Gander;

*8—Loss of consortium against all Defendants [Karen Scardino];

*9—Wrong death of Chiapperini against all Defendants;

*10—Wrong death of Kaczowka against all Defendants;

*11—Survival action for Chiapperini against all Defendants; and,*12—Survival action for Kaczowka against all Defendants.

[Paulino Atty. Aff., Ex. A, pp. 13–26].

In the Complaint's Wherefore Clause, Plaintiffs asks for “an Order compelling Gander Mountain to reform its policies, procedure and training with regard to the sale of firearms, including taking steps necessary to prevent unlawful sales to straw purchasers....” [Paulino Atty., Aff., Ex. A, p. 26]. Plaintiffs also seek compensatory and punitive damages, costs and disbursements, and attorneys' fees.

Gander was served via its registered agent with the pleadings on May 21, 2014.

The next day, Gander filed a Notice of Removal taking this case to the United States District Court for the Western District of New York on the basis that it involved a federal question. On June 11, 2014, Gander filed a motion to dismiss and/or strike in District Court. On June 12, 2014, Plaintiffs cross-moved to remand the matter back to state court. Gander opposed the remand motion, inter alia, on the basis that a local state court judge would be biased in this highly publicized case, would act to garner support for re-election, and would misapply federal law [Plaintiffs' MOL, Ex. # 1, pp. 3, 19; Ex. # 2, pp. 18, 23–25, 29, 30, 32].⁷ On July 28, 2014, the remand motion was argued before Judge David G. Larimer who granted it by way of an Order dated August 5, 2014.⁸

Motion Contentions Summary

Gander's Dismissal Motion

Instead of answering, and relying upon CPLR 3024 and 3211, Gander moved to dismiss the case on the following grounds:

1. The entire Complaint is barred by the federal Protection of Lawful Commerce in Arms Act (“PLCAA”).

2. The claims for negligent entrustment and public nuisance failed to state viable causes of action.

3. Plaintiffs' references in the Complaint to “extra legal” standards promulgated by private parties should be stricken as prejudicial and unnecessary.

4. Plaintiffs' demand for a permanent injunction compelling Gander to reform its policies should be stricken.

In support of its motion, Gander submitted an Affidavit from Kevin R. McKown (“McKown”), its Senior Director of Regulatory and Firearm Compliance, in which he provided information about Gander's unified and nationwide firearms sale training program, as well as about the subject firearms [McKown Aff., ¶¶ 4, 7–8, 11, 13–16].

Plaintiffs strenuously opposed the dismissal motion on the following grounds:

1. Per binding Fourth Department precedent, Williams v. Beemiller, Inc., 100 A.D.3d 143, 952 N.Y.S.2d 333 (4th Dept.2012) (hereinafter “Williams I ”), amended by, 103 A.D.3d 1191, 962 N.Y.S.2d 834 (4th Dept.2013) (hereinafter “Williams II ”), exceptions apply that remove this case from PLCAA's preemption.

2. Plaintiffs sufficiently alleged valid claims for negligent entrustment and public nuisance given Gander's direct dealings with Spengler. See also Williams II, 103 A.D.3d 1191, 962 N.Y.S.2d 834.

3. The protocols issued by the National Shooting Sports Foundation (“NSSF”), in conjunction with the ATF, should not be stricken from the Complaint because they are highly relevant in defining Gander's standard of care.

4. Gander's vagueness challenge to the request for a permanent injunction is premature, and this Court has the authority to issue injunctive relief that impacts actions outside of the state.

In its reply, Gander wholly failed to address the Williams I case in regard to its main PLCAA preemption argument.

Plaintiffs' Grand Jury Motion

Plaintiffs moved under Criminal Procedure Law (“CPL”) § 190.25(4)(a) and Judiciary Law § 325 for release of the Grand Jury minutes of Nguyen's state criminal case—People of the State of New York v. Dawn M. Nguyen [Indictment # 13/269]. As it is believed that Gander employees testified before the Grand Jury, as well as other alleged material witnesses, Plaintiffs contend that the minutes are essential to their civil action. Plaintiffs argue that there is no reason to keep this Grand Jury proceeding secret any longer.

The Monroe County District Attorney's Office opposed the motion by a letter dated October 9th, but no party interposed a response.

LEGAL DISCUSSION

Gander's Dismissal Motion

Gander invokes only CPLR 3211(a)(7) to dismiss the whole lawsuit, but that application falters. See e.g. Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184 (2001) (reversing granted CPLR 3211(a)(7) motion as the complaint adequately alleged a claim); City of Syracuse v. Comerford, 13 A.D.3d 1109, 1110, 787 N.Y.S.2d 788 (4th Dept.2004) (same).

In determining a CPLR 3211(a)(7) motion, the subject pleading is to be afforded a liberal construction. See CPLR 3026 ; Leon v. Martinez, 84 N.Y.2d 83,...