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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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NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED.
THE TOWN AMBULANCE PARAMEDICS DECIDED NOT TO TAKE PLAINTIFF’S DECEDENT TO THE HOSPITAL; THAT DECISION WAS DISCRETIONARY IN NATURE ENTITLING THE TOWN TO GOVERNMENTAL FUNCTION IMMUNITY IN THIS MED MAL ACTION (FOURTH DEPT).
THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS ARMED AND THEREFORE SHOULD NOT HAVE ATTEMPTED TO FRISK HIM; THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT WHEN HE THREW HIS COAT AT AN OFFICER AND RAN BECAUSE THE POLICE WERE NOT AUTHORIZED TO ATTEMPT THE FRISK; INDICTMENT DISMISSED; AN APPELLATE COURT CANNOT CONSIDER A THEORY WHICH WOULD SUPPORT DENIAL OF SUPPRESSION BUT WHICH WAS NOT RAISED BY THE PEOPLE BELOW (FOURTH DEPT).
PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT).
CONCLUSORY ALLEGATIONS THAT THE LANDLORD WAS AN OWNER OF OR A PARTNER IN THE BUSINESS WHICH LEASED THE PREMISES WHERE PLAINTIFF’S DECEDENT WAS INJURED SHOULD NOT HAVE SURVIVED THE MOTION TO DISMISS.
Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review
JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED.
PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

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