Williams v. Beemiller, Inc.
| Decision Date | 25 April 2011 |
| Docket Number | Index No. 7056/2005 |
| Citation | 2011 NY Slip Op 34303 (U) |
| Parties | DANIEL WILLIAMS EDWARD WILLIAMS Plaintiff v. BEEMILLER, INC. d/b/a HI-POINT CHARLES BROWN MKS SUPPLY, INC. INTERNATIONAL GUN-A-RAMA KIMBERLY UPSHAW JAMES NIGEL BOSTIC CORNELL CALDWELL JOHN DOE TRAFFICKERS 1 - 10 Defendant |
| Court | New York Supreme Court |
The above captioned matter, having come on by way of Defendant Beemiller, Inc., d/b/a Hi-Point (hereinafter "Beemiller") Notice of Motion to Dismiss Plaintiff's First Amended Complaint pursuant to the Protection of Lawful Commerce in Arms Act, (hereinafter PLCAA) dated November 24, 2009; the affirmation of Scott C. Allen, Esq., duly affirmed on November 24, 2009, together with exhibits attached thereto in support of certain relief; the Memorandum of Law in support of Defendant Beemiller's Motion to Dismiss Plaintiff's First Amended Complaint dated November 24, 2009; the Notice of Motion to Dismiss Plaintiff's First Amended Complaint for lack of personal jurisdiction and pursuant to the PLCAA on behalf of Defendant Brown, dated November 25, 2009; the affidavit of Defendant Charles Brown, duly sworn on November 25, 2009; the undated affirmation of Scott L. Braum, Esq., together with the exhibits attached thereto in support of certain relief; the Memorandum of Law in support of Defendant Charles Brown's Motion to Dismiss Plaintiff's First Amended Complaint for lack of personal jurisdiction and pursuant to the PLCAA dated November 25, 2009 and the Reply Memorandum in support of Defendant Charles Brown's Motion to Dismiss Plaintiff's First Amended Complaint for lack of personal jurisdiction and pursuant to the PLCAA dated April 9, 2010; the Notice of Motion to Dismiss Plaintiff's First Amended Complaint on the grounds that Plaintiffs failed to state a cause of action and lack of jurisdiction on behalf of Defendant, MKS Supply, Inc. (hereinafter "MKS") dated November 24, 2009; the affirmation of Jeffrey M. Malsch, Esq. duly affirmed on November 24, 2009, together with the exhibits attached thereto in support of certain relief; the memorandum of law in opposition to motions to dismiss Plaintiff's First Amended Complaint by Defendants Beemiller, MKS and Brown, dated February 22, 2010; the reply memorandum in support of Defendant Charles Brown's motion to dismiss Plaintiff's First Amended Complaint for lack of personal jurisdiction and pursuant to the PLCAA dated April 9, 2010; the brief in reply to Plaintiff's opposition to, and in further support of, Defendant MKS' motion to dismiss dated April 9, 2010; the notice of motion to intervene dated April 16, 2010 by intervenor United States to defend the constitutionality of the PLCAA; the affirmation of Michael S. Cerrone, Esq., duly affirmed on April 16, 2010 in support of certain relief; the Plaintiffs memorandum of law in reply to the brief of the United States of America dated April 23, 2010; the correspondence of Terrence M. Connors, Esq., dated May 3, 2010, together with the exhibits attached thereto in further opposition and in reply and the correspondence of Scott L. Braum, Esq., dated May 11, 2010, together with the exhibit attached thereto in further support and in reply; and oral argument having been had hereon; this decision follows.
Preliminarily, a brief recitation of facts is warranted. It is alleged that Defendant Beemiller, a federally licensed manufacturer of firearms, manufactured a Hi-Point 9 mm semi automatic pistol, bearing serial number 502139 and sold it to Defendant MKS, a federally licensed wholesale distributor of firearms. Thereafter, Defendant MKS sold the Hi-Point pistol to Defendant Brown, a federally licensed retail firearms dealer. Defendant Upshaw purchased the pistol from Defendant Brown at an Ohio gun show inOctober 2000. She then transferred the pistol to Defendant Bostic, completing what was ultimately found to be a "straw purchase". Defendant Bostic transported the pistol from Ohio to New York, where it was ultimately purchased by Defendant Caldwell.
In August 2003 Defendant Caldwell shot Plaintiff, Daniel Williams, having mistaken the "then-minor for another. It is noted that Defendants Upshaw, Bostic and Caldwell were successfully prosecuted for their respective crimes.
This action was commenced by Plaintiff Edward Williams, individually and on behalf of his minor son, alleging various causes of action against the named Defendants seeking compensatory and punitive damages, costs, disbursements and attorney fees. Following service of Plaintiff's First Amended Complaint, the aforementioned Defendants have moved to have the Amended Complaint dismissed. The Court will address these respective arguments.
Defendant Beemiller argues that, as a federally licensed gun manufacturer, it enjoys the protections afforded under the "Protection of Lawful Commerce in Arms Act" ("PLCAA") 15 U.S.C. §§ 7901-7903. This act, in part, provides to manufacturers immunity from compensatory or punitive damages in a qualified civil action, which resulted from a criminal or otherwise unlawful misuse of a firearm by a third party, which had been shipped or transported in interstate commerce. Defendant Beemiller argues that the Act mandates the immediate dismissal of the instant action as all applicable prerequisites of the Act are met, and further, that none of the exceptions to the application of the Act exist at bar, ie. negligent entrustment, negligence per se and/or intentional statutory violations by or on behalf of Defendant Beemiller.
Similarly, Defendant Brown invokes the protections of the PLCAA as well as raises jurisdictional arguments in support of his motion to dismiss Plaintiff's First Amended Complaint. Defendant Brown argues that the claimsagainst him are precluded by the Protections of Lawful Commerce in Arms Act, and further, that the New York Long Arm Statute (CPLR §302) and the Due Process clause do not permit the state to exercise personal jurisdiction over him.
Finally, Defendant MKS alleges that they, too, are entitled to the protections of the PLCAA and/or that the Plaintiff's First Amended Complaint fails to state a cause of action against them.
In opposition, Plaintiff argues that the PLCAA is inapplicable, or alternatively, if applicable, is unconstitutional.
For the reasons that follow, Defendant Beemiller's Motion to Dismiss Plaintiff's First Amended Complaint is granted pursuant to CPLR 3211(a)(7).
Plaintiff's First Amended Complaint alleges some five causes of action against Defendant Beemiller: (1) negligent distribution and sale, (2) negligent entrustment, (3) negligence per se, (4) public nuisance and (5) intentional statutory violations. In addition, Edward Williams asserts a derivative cause of action.
As aforementioned, Defendant Beemiller invokes the protections afforded gun manufacturers under the PLCAA, arguing that it meets all qualifying definitions for such protection and further, that none of the exceptions to its application exist. The Court is in accord. Based on the allegations as contained in Plaintiff's First Amended Complaint, the within action is, in fact, a civil action or proceeding brought by a person against a manufacturer of a qualified product for damages sustained, based on a criminal use of the product by a third person. Thus, PLCAA applies to Defendant Beemiller, warranting dismissal of the Amended Complaint, in the absence of disqualifying exceptions to the application of the PLCAA. A review of the record is warranted.
Plaintiff asserts a cause of action against Defendant Beemiller for negligent entrustment, an exception to the immunity afforded manufacturersof firearms in otherwise qualified civil actions. In essence, Plaintiff alleges that Defendant Beemiller negligently permitted Defendants MKS and Brown to acquire the subject pistol when it knew, or reasonably should have known, that they intended to, or were likely to, use it in a manner so as to create an unreasonable risk of harm to others. In addition, Plaintiff alleges that Defendants MKS and Brown only came to possess the pistol with Defendant Beemiller's consent, and that Defendant Beemiller should have known that it was reasonably foreseeable that Defendants MKS and Brown would use the pistol in a manner which created an unreasonable risk of harm to others and would supply the pistol to an illegal gun trafficker and that others would be injured by same.
However, by its own definition, the PLCAA's exception for immunity from liability in an otherwise qualified civil action for claims based on negligent entrustment and negligence per se, apply only to sellers, not manufacturers 15 U.S.C. §7901(b)(1). Therefore, the negligent entrustment exception to the PLCAA does not apply to Defendant Beemiller.
In addition, Plaintiffs allege a cause of action against Defendant Beemiller for negligence per se, based on purported violations of NY Penal Law §§400.05(1) and 240.45(1), as well as a conspiracy claim grounded in Defendant Bostic's alleged violation of NY Penal Law §265. Negligence per se arises from a violation of a statute designed for the protection of a particular class of individual. Moreover, in order to establish negligence per se, the statute purportedly violated must provide for a private right or cause of action.
Penal Law §400.05(1) authorizes the destruction of unlawfully possessed weapons seized by the police, and therefore, is not applicable to the case at bar. Therefore, this statute cannot serve as a predicate to the negligence per se exception to the PLCAA's definition of a qualified civil liability action.
Further, §240.45(1) is a statute designed to protect the public at large, rather than an identifiable, limited group of people. It is the codification of common law public nuisance, and requires a knowing or reckless act, rather than negligence as the basis for its violation.
In addition, Plaintiffs allege that Defendant Beemiller conspired with co-Defendant Bostic, culminating in...
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