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COMPLAINT SUING A RETAILER WHICH SOLD AMMUNITION TO A 20-YEAR-OLD WHO SHOT PLAINTIFF’S DECEDENT PROPERLY SURVIVED A MOTION TO DISMISS (FOURTH DEPT).

The Fourth Department determined the complaint alleging defendant retailer negligently sold ammunition to a 20-year old (Klocek) who shot plaintiff’s decedent properly survived a motion to dismiss. The action was not precluded by the Protection of Lawful Commerce in Arms Act (PLCAA, 15 USC 7901):

… [A] qualified civil liability action [prohibited by the PLCAA] does not include … “an action brought against a seller for negligent entrustment or negligence per se” … or “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” … . …

… [P]laintiffs allege that defendant violated 18 USC § 922 (b) (1) and Penal Law § 270.00 (5) when defendant allegedly sold “handgun ammunition” to Klocek, who was 20 years old at the time. The federal statute prohibits the sale or delivery of ammunition “other than . . . ammunition for a shotgun or rifle” to anyone the seller or deliverer “knows or has reasonable cause to believe is less than twenty-one years of age” (18 USC § 922 [b] [1]). The state statute prohibits the sale of ammunition “designed exclusively for use in a pistol or revolver” to anyone not authorized to possess a pistol or revolver (Penal Law § 270.00 [5]). Plaintiffs’ allegations, if true, establish that defendant committed a predicate offense under 15 USC § 7903 (5) (A) (ii) and, as a result, establish that this action is not a qualified civil liability action and not subject to immediate dismissal. King v Klocek, 2020 NY Slip Op 05619, Fourth Dept 10-9-20

 

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