Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered May 18, 2011.
The opinion of the court was delivered by: Peradotto, J.
Williams v Beemiller, Inc.
Decided on October 5, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
The order granted the motions of defendants Beemiller, Inc., doing business as Hi-Point, Charles Brown and MKS Supply, Inc. to dismiss the first amended complaint.
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.
Opinion by Peradotto, J.: Plaintiffscommenced 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 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 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." 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 US 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, ...