| Williams v Beemiller, Inc. |
| 2013 NY Slip Op 00670 [103 AD3d 1191] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| Daniel Williams et al., Appellants, v Beemiller, Inc., DoingBusiness as Hi-Point, et al., Respondents, et al., Defendants. (Appeal No. 1.) |
—[*1]Motion for reargument is granted in partand, upon reargument, the opinion and order entered October 5, 2012 (100 AD3d 143[2012]) is amended by adding the following section after section III:
We reject the alternative contention of MKS in support of affirmance that plaintiffsfailed to state a cause of action for common-law negligence or public nuisance underNew York law (see generally Parochial Bus Sys. v Board of Educ. of City ofN.Y., 60 NY2d 539, 545-546 [1983]). With respect to the common-law negligencecause of action, although " '[a] defendant generally has no duty to control the conduct ofthird persons so as to prevent them from harming others' " (Hamilton v BerettaU.S.A. Corp., 96 NY2d 222, 233 [2001], quoting D'Amico v Christie, 71NY2d 76, 88 [1987]), "[a] duty may arise . . . where there is a relationship. . . between defendant and a third-person tortfeasor that encompassesdefendant's actual control of the third person's actions" (id.). In Hamilton,the Court of Appeals determined that no such relationship existed because the plaintiffswere unable to draw any connection between specific gun manufacturers and the criminalwrongdoers (id. at 233-234). Indeed, Stephen Fox, one of the plaintiffs inHamilton, did not know the source of the gun used to shoot him, and thusplaintiffs were unable to show "that the gun used to harm plaintiff Fox came from asource amenable to the exercise of any duty of care that plaintiffs would impose upondefendant manufacturers" (id. at 234). Here, by contrast, plaintiffs have allegedthat defendants sold the specific gun used to shoot plaintiff to an unlawful strawpurchaser for trafficking into the criminal market, and that defendants were aware thatthe straw purchaser was acting as a conduit to the criminal gun market. Thus, unlike inHamilton, plaintiffs have sufficiently alleged that defendants "were a direct linkin the causal chain that resulted in plaintiffs' injuries, and that defendants wererealistically in a position to prevent the wrongs" (id.).
Further, Caldwell's intervening criminal act does not necessarily sever the causalconnection between the alleged negligence of defendants and plaintiff's injury (seeEarsing v Nelson, 212 AD2d 66, 70 [1995]). Rather, "liability turns upon whetherthe intervening act is a normal or foreseeable consequence of the situation created by thedefendant[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 Cityof N.Y., 90 NY2d 944, 946 [1997]). Here, plaintiffs allege that defendants,including MKS, knowingly participated in the sale of 140 handguns, including 87handguns in a single transaction, to Bostic's gun trafficking ring. We conclude that thoseallegations are sufficient to raise a question of fact whether it was reasonably foreseeablethat supplying large quantities of guns for resale to the criminal market would result inthe 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 acause of action for public nuisance (see Johnson v Bryco Arms, 304 F Supp 2d383, 398-399 [2004]; seegenerally Baity v General Elec. Co., 86 AD3d 948, 951 [2011]). As discussedabove, plaintiffs allege [*2]that defendants violatedfederal and state laws by selling guns to a straw purchaser, who funneled the guns intothe criminal gun market, thereby posing a danger to the general public, and that plaintiffwas injured by one of those guns. Thus, plaintiffs have alleged that defendants engagedin 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 injurybeyond that suffered by the community at large' " (Baity, 86 AD3d at 951; seeA-1 Jewelry & Pawn, Inc., 247 FRD at 348; Johnson, 304 F Supp 2d at398-399). and by changing the original section "IV" to section "V," and the original section "V" tosection "VI." Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.(Filed Feb. 1, 2013.)