Williams v Beemiller, Inc.Williams v Beemiller, Inc.
Fourth Department, October 5, 2012
APPEARANCES OF COUNSEL
Connors & Vilardo, LLP, Buffalo (James W. Grable, Jr. and Eric M. Soehnlein of counsel), 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, Ohio (Scott L. Braum, of the Ohio bar, admitted pro hac vice, of counsel), and Damon Morey LLP, Buffalo (Hedwig M. Auletta of counsel), 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 intervenor-respondent.
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 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 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 irresponsible
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) (
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 AD3d 1458, 1458 [2011]). 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 AD2d 983, 984 [1990]).
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 (see
Here, it is undisputed that this matter falls within the PLCAA‘s general definition of a “qualified civil liability action” (
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” (
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 AD3d 1366, 1367 [2011], lv denied 17 NY3d 704 [2011], quoting Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
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 (see
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 handgun.” With respect to Brown specifically, the complaint alleges that he
“violated federal, state, and local statutes, regulations, and ordinances[ ] by selling firearms with a federal firearms license registered to his home address, by selling firearms with a federal firearms
license solely at gun shows, and by selling firearms to Upshaw, who was purchasing firearms on Bostic‘s behalf, when Brown knew or had reasonable cause to believe that Bostic was ineligible to purchase a weapon.”
Initially, we reject defendants’ contention that the complaint was properly dismissed because plaintiffs failed to identify the federal statutes that defendants allegedly violated. Defendants rely on cases involving the specific pleading requirements imposed in actions pursuant to
We conclude that, although the complaint does not specify the statutes allegedly violated, it sufficiently alleges facts supporting a finding that defendants knowingly violated federal gun laws. For example, the Gun Control Act of 1968 (
Here, plaintiffs allege that Upshaw engaged in illegal straw purchases on behalf of Bostic with the knowledge and assistance of Brown, a federally licensed firearms dealer. Specifically, plaintiffs allege that, on at least four different occasions, Brown sold guns to Bostic, a “convicted felon” who was prohibited from purchasing firearms (see
With respect to Beemiller and MKS, we conclude that the complaint sufficiently alleges that those entities were accomplices to Brown‘s statutory violations (see generally Carney, 387 F3d at 446-447). Plaintiffs allege that Beemiller and MKS supplied handguns to Brown even though they knew or should have known that he was distributing those guns to unlawful purchasers for trafficking into the criminal market. In support thereof, plaintiffs allege, inter alia, that from 1988 through 2000, ATF notified Beemiller and MKS that over 13,000 guns they sold had been used in crimes. Notably, MKS is allegedly
III
In light of our conclusion that this action falls within the PLCAA‘s predicate exception and therefore is not precluded by the Act (
IV
We reject the alternative contention of MKS in support of affirmance that plaintiffs failed to state a cause of action for common-law negligence or public nuisance under New York law (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]). With respect to the common-law negligence cause of action, although ” ‘[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others’ ” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233 [2001], quoting D‘Amico v Christie, 71 NY2d 76, 88 [1987]), “[a] duty may arise . . . where there is a relationship . . . between defendant and a third-person tortfeasor that encompasses defendant‘s actual control of the third person‘s actions” (id.). In Hamilton, the Court of Appeals determined that no such relationship existed because the plaintiffs were unable to draw any connection between specific gun manufacturers and the criminal wrongdoers (id. at 233-234). Indeed, Stephen Fox, one of the plaintiffs in Hamilton, did not know the source of the gun used to shoot him, and thus plaintiffs were unable to show “that the gun used to harm plaintiff Fox came from a source amenable to the exercise of any duty of care that plaintiffs would impose upon defendant manufacturers” (id. at 234). Here, by contrast, plaintiffs have alleged that defendants sold the specific gun used to shoot plaintiff to an unlawful straw purchaser for trafficking into the criminal market, and that defendants were aware that the straw purchaser was acting as a conduit to the criminal gun market. Thus, unlike in Hamilton, plaintiffs have sufficiently alleged that defendants “were a direct link in the causal chain that
Further, Caldwell‘s intervening criminal act does not necessarily sever the causal connection between the alleged negligence of defendants and plaintiff‘s injury (see Earsing v Nelson, 212 AD2d 66, 70 [1995]). Rather, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant[s‘] negligence” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]; see Bell v Board of Educ. of City of N.Y., 90 NY2d 944, 946 [1997]). Here, plaintiffs allege that defendants, including MKS, knowingly participated in the sale of 140 handguns, including 87 handguns in a single transaction, to Bostic‘s gun trafficking ring. We conclude that those allegations are sufficient to raise a question of fact whether it was reasonably foreseeable that supplying large quantities of guns for resale to the criminal market would result in the shooting of an innocent victim (see generally Bell, 90 NY2d at 946; Earsing, 212 AD2d at 69-70). Thus, “[w]hether the alleged negligence of [MKS] was a proximate cause of [plaintiff‘s] injuries is a question of fact for the jury” (Earsing, 212 AD2d at 70).
We likewise conclude that the allegations in the complaint are sufficient to state a cause of action for public nuisance (see Johnson v Bryco Arms, 304 F Supp 2d 383, 398-399 [2004]; see generally Baity v General Elec. Co., 86 AD3d 948, 951 [2011]). As discussed above, plaintiffs allege that defendants violated federal and state laws by selling guns to a straw purchaser, who funneled the guns into the criminal gun market, thereby posing a danger to the general public, and that plaintiff was injured by one of those guns. Thus, plaintiffs have alleged that defendants engaged in unlawful conduct that endangered the lives of “a considerable number of persons” (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 568 [1977], rearg denied 42 NY2d 1102 [1977]), and that plaintiff “suffered special injury beyond that suffered by the community at large” (Baity, 86 AD3d at 951; see A-1 Jewelry & Pawn, Inc., 247 FRD at 348; Johnson, 304 F Supp 2d at 398-399).
V
We further agree with plaintiffs that the court erred in dismissing the action against Brown for lack of personal jurisdiction inasmuch as they are entitled to discovery on that issue. As the parties seeking to assert personal jurisdiction, plaintiffs
“However, in opposing a motion to dismiss pursuant to
CPLR 3211 (a) (8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth[ ] a sufficient start, and show[ ] their position not to be frivolous” (Lettieri v Cushing, 80 AD3d 574, 575 [2011] [internal quotation marks omitted]; see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Gold Bullion Intl. v General Mills, 53 AD2d 1045, 1045 [1976]).
Thus, “plaintiff[s] need only demonstrate that facts may exist to exercise personal jurisdiction over the defendant[ ]” (Tucker v Sanders, 75 AD3d 1096, 1096 [2010] [emphasis added; internal quotation marks omitted]; see Peterson, 33 NY2d at 467).
“commits a tortious act without the state causing injury to person or property within the state . . . if he [or she] . . . derives substantial revenue from goods used or consumed . . . in the state, or . . . expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.”
Here, there is no question that the complaint sufficiently alleges that Brown committed a tortious act outside New York that caused injury to a person inside New York (see
We further conclude that the complaint sufficiently alleges that Brown expected or reasonably should have expected that his sale of guns to Bostic‘s trafficking ring would have consequences in New York (see
With respect to whether Brown “derives substantial revenue from goods used or consumed . . . in [New York]” (
The fact that Brown garnered significant revenue from gun sales to a New York resident, however, does not establish that he “derives substantial revenue from goods used or consumed . . . in [New York]” (
We further agree with plaintiffs that jurisdictional discovery is necessary to determine the nature of Brown‘s relationship with MKS. Plaintiffs allege that MKS is a two-person company and that “MKS essentially is Mr. Brown.” Indeed, Brown submitted an excerpt from a deposition in another case in which he testified that he owns 100% of the shares of MKS, and that he is the president of the company. Plaintiffs further allege that MKS “deals directly to over 35 New York dealers,” that MKS sold at least 630 handguns traced to crime in New York, and that “[m]any of th[o]se handguns were sold to New York residents for use in New York.” Notably, MKS does not dispute that it is subject to personal jurisdiction in New York. If MKS and Brown are indeed a single enterprise or share an agency relationship, then the admittedly interstate character of MKS may render Brown amenable to jurisdiction in New York (see e.g. Darienzo, 74 AD2d at 344-346; see also Beatie & Osborn LLP v Patriot Scientific Corp., 431 F Supp 2d 367, 389 [2006]).
Finally, there is no merit to Brown‘s contention, with which the court agreed, that plaintiffs are not entitled to discovery because their cocounsel had the opportunity to depose Brown in an unrelated case in 2005. Even assuming, arguendo, that information gleaned by plaintiffs’ cocounsel during the course of unrelated litigation could be somehow imputed to plaintiffs, we note that Brown was not a named party in that case, and thus New York‘s jurisdiction over Brown was not at issue.
VI
Accordingly, we conclude that the order in appeal No. 1 should be reversed, defendants’ motions should be denied, and the complaint against defendants should be reinstated.
Centra, J.P., Carni, Lindley and Sconiers, JJ., concur.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motions are denied, and the first amended complaint is reinstated against defendants Beemiller, Inc., doing business as Hi-Point, Charles Brown and MKS Supply, Inc.
[As amended, see 103 AD3d —, 2013 NY Slip Op 00670.]