Williams v. Beemiller, Inc.

• Decision Date: 05 October 2012
• Citation: 2012 N.Y. Slip Op. 06695,952 N.Y.S.2d 333,100 A.D.3d 143
• Parties: Daniel WILLIAMS and Edward Williams, Plaintiffs–Appellants, v. BEEMILLER, INC., doing business as Hi–Point, Charles Brown, MKS Supply, Inc., Defendants–Respondents, et al., Defendants, and The United States, Respondent. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 143

952 N.Y.S.2d 333

2012 N.Y. Slip Op. 06695

Daniel WILLIAMS and Edward Williams, Plaintiffs–Appellants,

v.BEEMILLER, INC., doing business as Hi–Point, Charles Brown, MKS Supply, Inc., Defendants–Respondents, et al., Defendants,andThe United States, Respondent. (Appeal No. 1.)

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

Oct. 5, 2012.

Connors & Vilardo, LLP, Buffalo, and Brady Center to Prevent Gun Violence, Washington, D.C. (Jonathan E. Lowy, of the Washington, D.C. Bar, Admitted Pro Hac Vice, of Counsel), for Plaintiffs–Appellants.

Renzulli Law Firm, LLP, White Plains (Scott C. Allan of Counsel), for Defendant–Respondent Beemiller, Inc., doing business as Hi–Point.

Scott L. Braum & Associates, Ltd., Dayton, OH (Scott L. Braum, of The Ohio Bar, Admitted Pro Hac Vice, of Counsel), and Damon Morey LLP, Buffalo, for Defendant–Respondent Charles Brown.

Pisciotti, Malsch & Buckley, P.C., White Plains (Jeffrey M. Malsch of Counsel), for Defendant–Respondent MKS Supply, Inc.

William J. Hochul, Jr., United States Attorney, Washington, D.C. (Benjamin S. Kingsley of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

Opinion by PERADOTTO, J.:

Plaintiffs commenced this action seeking damages for injuries sustained by Daniel Williams (plaintiff) in an August 2003 shooting in the City of Buffalo. Plaintiff, a high school student, was shot in the abdomenby 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 semi-automatic 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 defendant Charles Brown, a federal firearms licensee in Ohio. In October 2000, Brown sold 87 handguns, including the gun at issue, to defendants Kimberly Upshaw and James Nigel Bostic at a gun show in Ohio. Plaintiffs allege that Bostic, a Buffalo resident, was engaged in a trafficking scheme whereby he traveled to Ohio, a state with comparatively less stringent gun control laws than New York, and used “straw purchasers” to obtain large numbers of handguns. Bostic then supplied those guns, including the gun used to shoot plaintiff, to the criminal market in New York.

In the first amended complaint (hereafter, complaint), plaintiffs allege, 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 irresponsibledealers, 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.” The complaint contains six causes of action. The first five causes of action allege that defendants (1) negligently distributed and sold the gun at issue to individuals they knew or should have known were in the business of illegally distributing handguns; (2) negligently entrusted the gun to individuals they knew or should have known would create an unreasonable risk of physical injury to others; (3) committed negligence per se by violating various federal and state gun laws; (4) created a public nuisance by distributing a large number of guns into the illegal gun market and selling them to that market; and (5) intentionally violated federal, state, and local legislative enactments. The sixth cause of action is derivative in nature.

In lieu of answering the complaint, defendants each moved to dismiss the complaint pursuant to the Protection of Lawful Commerce in Arms Act (PLCAA or Act) (15 USC §§ 7901–7903, as added by Pub. L. 109–92, 119 U.S. Stat. 2095). Plaintiffs opposed the motions, contending, inter alia, that the PLCAA was inapplicable or, in the alternative, that the statute was unconstitutional. In appeal No. 1, plaintiffs appeal from an order granting defendants' motions and dismissing the complaint against them. In appeal No. 2, plaintiffs appeal from an order denying their motion for leave to renew and reargue their opposition to defendants' motions to dismiss.

I

We conclude at the outset with respect to appeal No. 2 that the appeal from the order therein must be dismissed. In support of that part of the motion seeking leave to renew, plaintiffs failed to offer new facts that were unavailable at the time of their prior motion ( see Hill v. Milan, 89 A.D.3d 1458, 1458, 932 N.Y.S.2d 411). Thus, plaintiffs' motion was actually only one seeking leave to reargue, and no appeal lies from an order denying a motion for leave to reargue ( see id.;Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5).

II

With respect to appeal No. 1, we agree with plaintiffs that Supreme Court erred in dismissing the complaint pursuant to the PLCAA. The PLCAA, which went into effect on October 26, 2005, generally shields manufacturers and sellers of firearms from liability for harm caused by the criminal or unlawful misuse of their non-defective products, i.e., products that functioned as designed and intended ( see15 USC §§ 7901[b][1]; 7903[5][A]; Ileto v. Glock, Inc., 565 F.3d 1126, 1129,cert. denied––– U.S. ––––, 130 S.Ct. 3320, 176 L.Ed.2d 1219). To that end, the Act prohibits the institution of a “qualified civil liability action” in any state or federal court (§ 7902[a] ), and mandates that any such action pending on the effective date of the PLCAA “shall be immediately dismissed” (§ 7902[b]; see Ileto v. Glock, Inc., 421 F.Supp.2d 1274, 1284,affd.565 F.3d 1126,cert. denied––– U.S. ––––, 130 S.Ct. 3320, 176 L.Ed.2d 1219;City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 389,cert. denied––– U.S. ––––, 129 S.Ct. 1579, 173 L.Ed.2d 675;Estate of Charlot v. Bushmaster Firearms, Inc., 628 F.Supp.2d 174, 180). A “qualified civil liability action” is defined, in relevant part, as “a civil action ... brought by any person against a manufacturer or seller of a qualified product ... for damages ... or other relief[ ] resulting from the criminal or unlawful misuse of a qualified product by the person or a third party” (§ 7903[5][A] ). A “qualified product” includes “a firearm ... shipped or transported in interstate or foreign commerce” (§ 7903[4] ).

Here, it is undisputed that this matter falls within the PLCAA's general definition of a “qualified civil liability action” (15 USC § 7903[5][A] ). The present suit is a “civil action” brought by a “person” (plaintiffs) against a “manufacturer” (Beemiller) or “seller” (MKS/Brown) of a “qualified product” (the handgun) seeking “damages ... or other relief” resulting from the “criminal ... misuse of [the handgun] by ... a third party” (Caldwell) ( id.;see Ileto, 565 F.3d at 1131–1132;Ryan v. Hughes–Ortiz, 81 Mass.App.Ct. 90, 98, 959 N.E.2d 1000, 1007). The question thus becomes whether any of the statute's six exceptions to the definition of “qualified civil liability action” apply to this action ( see§ 7903[5][A][i]–[vi]; Ileto, 421 F.Supp.2d at 1283–1284;Ryan, 81 Mass.App.Ct. at 98, 959 N.E.2d at 1007).

Of particular relevance here, a “qualified civil liability action” does not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product,and the violation was a proximate cause of the harm for which relief is sought” (15 USC § 7903[5][A][iii] [emphasis added] ). That exception is often referred to as the “ ‘predicate exception,’ because a plaintiff not only must present a cognizable claim, [but] he or she also must allege a knowing violation of a ‘predicate statute,’ ” i.e., a state or federal statute applicable to the sale or marketing of firearms ( Ileto, 565 F.3d at 1132;see District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 168,cert. denied––– U.S. ––––, 129 S.Ct. 1579, 173 L.Ed.2d 675;Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 429–430). The PLCAA also contains an exception for claims against a seller of firearms for negligent entrustment or negligence per se (§ 7903[5][A][ii]; see Ileto, 565 F.3d at 1136 n. 6).

It is well established that, “[w]hen reviewing ‘a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory’ ” ( 10 Ellicott Sq. Ct. Corp. v. Violet Realty, Inc., 81 A.D.3d 1366, 1367, 916 N.Y.S.2d 705,lv. denied17 N.Y.3d 704, 2011 WL 2472684, quoting Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184;see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Applying that standard, we agree with plaintiffs that the court erred in dismissing the complaint inasmuch as they sufficiently alleged that defendants knowingly violated various federal and state statutes applicable to the sale or marketing of firearms within the meaning of the PLCAA's predicate exception ( see15 USC § 7903[5][A][iii]; City of New York v. A–1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 351).

The complaint alleges, inter alia, that defendants “violated federal, state, and local statutes, regulations, and ordinances by engaging in illegal gun trafficking and illegally selling the Hi–Point...