Williams v. Beemiller, Inc., 1438

CourtNew York Supreme Court Appellate Division
Writing for the CourtOpinion by Peradotto, J.P.
Citation72 N.Y.S.3d 276,159 A.D.3d 148
Decision Date09 February 2018
Docket NumberCA 17–00501,1438
Parties Daniel WILLIAMS and Edward Williams, Plaintiffs–Respondents, v. BEEMILLER, INC., doing business as Hi–Point, et al., Defendants, and Charles Brown, Defendant–Appellant.

159 A.D.3d 148
72 N.Y.S.3d 276

Daniel WILLIAMS and Edward Williams, Plaintiffs–Respondents,
v.
BEEMILLER, INC., doing business as Hi–Point, et al., Defendants,
and
Charles Brown, Defendant–Appellant.

1438
CA 17–00501

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 9, 2018


SCOTT L. BRAUM & ASSOCIATES, LTD., DAYTON, OHIO (SCOTT L. BRAUM, OF THE OHIO BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND BARCLAY DAMON LLP, BUFFALO, FOR DEFENDANT–APPELLANT.

BRADY CENTER TO PREVENT GUN VIOLENCE, LEGAL ACTION PROJECT, WASHINGTON, D.C. (JONATHAN E. LOWY, OF THE WASHINGTON, D.C. BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND CONNORS & VILARDO, BUFFALO, FOR PLAINTIFFS–RESPONDENTS.

PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, AND WINSLOW, JJ.

OPINION AND ORDER

Opinion by Peradotto, J.P.:

159 A.D.3d 150

In this appeal, we must determine whether defendant Charles Brown, an out-of-state seller of firearms who sold a gun that was transported to New York and used in a shooting, is subject to personal jurisdiction in this state. We hold that the exercise of personal jurisdiction under New York's long-arm statute does not comport with federal due process under the circumstances of this case.

I

As we explained when this case was previously before us in the context of motions to dismiss by three defendants ( Williams v. Beemiller, Inc., 100 A.D.3d 143, 952 N.Y.S.2d 333 [4th Dept. 2012], amended on rearg 103 A.D.3d 1191, 962 N.Y.S.2d 834 [4th Dept. 2013] ), plaintiffs commenced this action seeking damages for injuries sustained by Daniel Williams (plaintiff) in an August 2003 shooting in Buffalo. Plaintiff, a high school student, was shot in the abdomen by defendant Cornell Caldwell, who apparently misidentified plaintiff as a rival gang member. The gun used to shoot plaintiff was identified as a Hi–Point 9mm semiautomatic pistol manufactured by defendant Beemiller, Inc., doing business as Hi–Point (Beemiller), an Ohio corporation and a federally licensed firearms manufacturer. Beemiller sold the gun to defendant MKS Supply, Inc. (MKS), an Ohio corporation and a federally licensed wholesale distributor of firearms. MKS then sold the gun to Brown, who held a federal firearms license (FFL) in Ohio and sold guns at retail as Great Lakes Products (Great Lakes).

During several sales at Ohio gun shows in 2000, Brown sold 181 guns, including the gun at issue, to defendants James Nigel

159 A.D.3d 151

Bostic and his associates, including Kimberly Upshaw. According to plaintiffs, Bostic was a gun trafficker who regularly traveled to Ohio and used "straw purchasers"—such as Upshaw—to obtain large numbers of handguns for resale on the streets of Buffalo. Indeed, Bostic eventually pleaded guilty to federal firearms trafficking violations and was sentenced to 87 months in prison.

In the first amended complaint (hereafter, complaint), plaintiffs alleged, inter alia, that Beemiller, MKS, and Brown (collectively, defendants) "negligently distributed and sold the Hi–Point handgun in a manner that caused it to be obtained by Caldwell, an illegal and malicious gun user and possessor, and then to be used to shoot [plaintiff]." According to plaintiffs, Beemiller and MKS intentionally supplied handguns to irresponsible dealers, including Brown, because they profited from sales to the criminal gun market. Brown, in turn, sold numerous handguns, including the subject gun, to Bostic and Upshaw, even though he knew or should have known that they "intended to sell these multiple guns on the criminal handgun market, to supply prohibited persons and criminals such as Caldwell with handguns." Plaintiffs alleged six causes of action against defendants.

In lieu of answering, defendants each moved to dismiss the complaint against them and, in his motion, Brown asserted, inter alia, that he was not subject to personal jurisdiction in New York (see id. at 152, 952 N.Y.S.2d 333 ). Supreme Court dismissed the action against Brown for lack of jurisdiction, but we reversed on appeal, holding in relevant part that plaintiffs made a sufficient start to warrant further disclosure on the issue whether personal jurisdiction could be established over Brown (see id. at 152–154.1, 952 N.Y.S.2d 333 ).

In his subsequent answer, Brown asserted various affirmative defenses, including that the court lacked personal jurisdiction over him. Following jurisdictional discovery, Brown moved for summary judgment dismissing the complaint against him. In its bench decision, the court concluded that plaintiffs had established the requisite elements for the exercise of long-arm personal jurisdiction over Brown under CPLR 302(a)(3), including that Brown derived substantial revenue from guns used in New York and from interstate commerce. The court also concluded that plaintiffs had demonstrated that "Brown had some knowledge that guns would end up in New York" inasmuch as the submissions showed that a significant number

159 A.D.3d 152

of guns sold by Brown were used in criminal activity in Buffalo and that a statement was made to Brown that Bostic and Upshaw planned to open a gun store in Ohio and one in Buffalo. Brown appeals from the order denying his motion for summary judgment.

II

It is well established that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Thus, "[a] party moving for summary judgment must demonstrate that ‘the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment’ in the moving party's favor" ( Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014], quoting CPLR 3212 [b] ). "This burden is a heavy one and on a motion for summary judgment, ‘facts must be viewed in the light most favorable to the non-moving party’ " ( William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 [2013] ), "and every available inference must be drawn in the [non-moving party's] favor" (De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ). If the moving party makes a prima facie showing, "the burden then shifts to the non-moving party to ‘establish the existence of material issues of fact which require a trial of the action’ " ( Jacobsen, 22 N.Y.3d at 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 ). To the extent that the parties dispute the applicable standard, we note that the same burden-shifting framework applies where, as here, a defendant moves for summary judgment on the affirmative defense of lack of long-arm personal jurisdiction (see e.g. Andrew Greenberg, Inc. v. Sirtech Can., Ltd., 79 A.D.3d 1419, 1421, 913 N.Y.S.2d 808 [3d Dept. 2010] ; Dreznick v. Lenchner, 41 A.D.3d 769, 770, 838 N.Y.S.2d 781 [2d Dept. 2007] ; Kesterson v. Cambo Fotografische Industrie BV, 30 A.D.3d 301, 301, 819 N.Y.S.2d 222 [1st Dept. 2006] ; Schultz v. Hyman, 201 A.D.2d 956, 957–958, 607 N.Y.S.2d 824 [4th Dept. 1994] ).

In determining whether the exercise of personal jurisdiction over a nondomiciliary defendant is proper, a court must assess whether the requirements of New York's long-arm statute have been met and, if so, whether a finding of personal jurisdiction comports with federal due process (see LaMarca v. Pak–Mor Mfg. Co., 95 N.Y.2d 210, 216, 713 N.Y.S.2d 304, 735 N.E.2d 883 [2000] ).

159 A.D.3d 153

III

CPLR 302(a)(3) provides, as relevant here, that a court may exercise personal jurisdiction over a nondomiciliary

"who in person or through an agent ... commits a tortious act without the state causing injury to person or property within the state ... if he [or she] (i) ... derives substantial revenue from goods used or consumed ... in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce."

On appeal, Brown does not challenge the assertion of statutory long-arm jurisdiction on the ground that he did not commit a tortious act outside New York that caused injury to a person inside New York (see id.; see generally Penguin Group [USA] Inc. v. American Buddha, 16 N.Y.3d 295, 302, 921 N.Y.S.2d 171, 946 N.E.2d 159 [2011] ; LaMarca, 95 N.Y.2d at 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 ). In any event, the record evidence suggests that Brown improperly sold the subject gun in Ohio to a gun trafficking ring (see e.g. Shawano Gun & Loan, LLC v. Hughes, 650 F.3d 1070, 1073 [7th Cir.2011] ; see generally 18 USC §§ 2 [a]; 922[m] ), and establishes that the gun was later used to shoot and injure plaintiff in New York.

Statutory long-arm jurisdiction thus turns on whether Brown "derives substantial revenue from goods used or consumed ... in...

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11 practice notes
  • Archer-Vail v. LHV Precast Inc., 526555
    • United States
    • New York Supreme Court Appellate Division
    • 17 Gennaio 2019
    ...been met and, if so, whether a finding of personal jurisdiction comports with federal due process" ( Williams v. Beemiller, Inc., 159 A.D.3d 148, 152, 72 N.Y.S.3d 276 [2018] ; see Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 330–331, 45 N.Y.S.3d 276, 68 N.E.3d 1 [2016] ; LaMarca v. Pak–......
  • Williams v. Beemiller, Inc., No. 25
    • United States
    • New York Court of Appeals
    • 9 Maggio 2019
    ...the motion. The Appellate Division reversed, granted the motion for summary judgment, and dismissed the complaint as against Brown ( 159 A.D.3d 148, 72 N.Y.S.3d 276 [4th Dept. 2018] ). Although the Appellate Division credited plaintiffs' argument that jurisdiction could be exercised under C......
  • Williams v. Beemiller, Inc., No. 25
    • United States
    • New York Court of Appeals
    • 9 Maggio 2019
    ...the motion. The Appellate Division reversed, granted the motion for summary judgment, and dismissed the complaint as against Brown ( 159 A.D.3d 148, 72 N.Y.S.3d 276 [4th Dept. 2018] ). Although the Appellate Division credited plaintiffs' argument that jurisdiction could be exercised under C......
  • Fica Frio, Ltd. v. Seinfeld, 19 Civ. 1032 (VM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 21 Gennaio 2020
    ...commerce is great, even though it comprises only a small portion of the defendant's overall business." Williams v. Beemiller, 159 A.D.3d 148, 72 N.Y.S.3d 276, 281 (4th Dep't 2018), aff'd, 33 N.Y.3d 523, 106 N.Y.S.3d 237, 130 N.E.3d 833 (2019) ; Allen v. Canadian Gen. Elec. Co., 65 A.D.......
  • Request a trial to view additional results
11 cases
  • Archer-Vail v. LHV Precast Inc., 526555
    • United States
    • New York Supreme Court Appellate Division
    • 17 Gennaio 2019
    ...been met and, if so, whether a finding of personal jurisdiction comports with federal due process" ( Williams v. Beemiller, Inc., 159 A.D.3d 148, 152, 72 N.Y.S.3d 276 [2018] ; see Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 330–331, 45 N.Y.S.3d 276, 68 N.E.3d 1 [2016] ; LaMarca v. Pak–......
  • Williams v. Beemiller, Inc., No. 25
    • United States
    • New York Court of Appeals
    • 9 Maggio 2019
    ...the motion. The Appellate Division reversed, granted the motion for summary judgment, and dismissed the complaint as against Brown ( 159 A.D.3d 148, 72 N.Y.S.3d 276 [4th Dept. 2018] ). Although the Appellate Division credited plaintiffs' argument that jurisdiction could be exercised under C......
  • Williams v. Beemiller, Inc., No. 25
    • United States
    • New York Court of Appeals
    • 9 Maggio 2019
    ...the motion. The Appellate Division reversed, granted the motion for summary judgment, and dismissed the complaint as against Brown ( 159 A.D.3d 148, 72 N.Y.S.3d 276 [4th Dept. 2018] ). Although the Appellate Division credited plaintiffs' argument that jurisdiction could be exercised under C......
  • Fica Frio, Ltd. v. Seinfeld, 19 Civ. 1032 (VM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 21 Gennaio 2020
    ...commerce is great, even though it comprises only a small portion of the defendant's overall business." Williams v. Beemiller, 159 A.D.3d 148, 72 N.Y.S.3d 276, 281 (4th Dep't 2018), aff'd, 33 N.Y.3d 523, 106 N.Y.S.3d 237, 130 N.E.3d 833 (2019) ; Allen v. Canadian Gen. Elec. Co., 65 A.D.......
  • Request a trial to view additional results

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