Opinion · District Court, E.D. New York

City of New York v. A-1 Jewelry & Pawn, Inc.

252 F.R.D. 130

Type: Opinion
Court: District Court, E.D. New York
Jurisdiction: New York
Date: 2008-05-21
Topic: litigation

MEMORANDUM & ORDER JACK B. WEINSTEIN, Senior District Judge. I. Introduction Defendant Adventure Outdoors, Inc. (“Adventure”), the only defendant remaining in this lawsuit, moves for summary judgment on three grounds: (1) personal jurisdiction over the defendant cannot be exercised by this court; (2) the plaintiff has failed to raise a genuine issue of material fact that defendant proximately caused a public nuisance in the City of New York; and (3) the suit must be dismissed pursuant to the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. § 7901-02.

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CITY OF NEW YORK v. A-1 JEWELRY PAWN, INC. (E.D.N.Y. 5-21-2008)

252 F.R.D. 130

The CITY OF NEW YORK, Plaintiff, v. A-1 JEWELRY PAWN, INC.; Adventure

Outdoors, Inc.; Cole's Gun Shop, Inc.; Dunkelberger's Sports Outfitters;

Gallery Distributing Inc.; Greg L. Driggers d/b/a AAA Gun Pawn Brokers;

the Gun Store, Inc.; Harold W. Babcock, Jr. d/b/a Webb's Sporting Goods;

James Thomas Farmer d/b/a Jim's Guns and Whatever; Mickalis Pawn Shop, LLC;

Nancy Dailey d/b/a Peddler's Post; Old Dominion Guns Tackle, Inc.; Patriot

Services, Inc.; Welsh Pawn Shop, Inc. d/b/a Big Tom's Pawn Shop; Woodrow C.

Holman III d/b/a Woody's Pawn Shop, Defendants.

No. 06-CV-2233.

United States District Court, E.D. New York.

May 21, 2008

West Page 131

Eric Proshansky, Gail P. Rubin, Corporation Counsel of the City of NY, Ari Biernoff, New York City Law Department, Affirmative Litigation Division, Bryan Robert Dunlap, James Gardner Wheaton, Kenneth William Taber, Sangita A. Shah, Pillsbury Winthrop Shaw Pittman LLP, Melanie C.T. Ash, Richard J. Costa, New York City Law Department, New York, NY, for Plaintiff.

John F. Renzulli, Joseph John Burruano, Scott Charles Allan, Renzulli Law Firm LLP, White Plains, NY, Christopher Renzulli, Renzulli Law Firm, LLP, New York, NY, for Defendants.

MEMORANDUM ORDER

JACK WEINSTEIN, Senior District Judge

I. Introduction

Defendant Adventure Outdoors, Inc. ("Adventure"), the only defendant remaining in this lawsuit, moves for summary judgment on three grounds: (1) personal jurisdiction over the defendant cannot be exercised by this court; (2) the plaintiff has failed to raise a genuine issue of material fact that defendant proximately caused a public nuisance in the City of New York; and (3) the suit must be dismissed pursuant to the Protection of Lawful Commerce in Arms Act ("PLCAA"), 15 U.S.C. § 7901-02. Summary judgment is denied.

II. Personal Jurisdiction

Adventure's motions to dismiss the original complaint and the amended complaint for lack of personal jurisdiction have been rejected.See City of New York v. A-1 Jewelry Pawn, Inc.,501 F.Supp.2d 369,398-404(E.D.N.Y. 2007) ("A-1 Jewelry I") (original complaint),reconsideration denied, No. 06-CV-2233,2007 WL 4557311,2007 U.S. Dist. LEXIS 93967(E.D.N.Y. Sept. 27, 2007);City of New York v. A-1 Jewelry Pawn, Inc.,247 F.R.D. 296,308-10(E.D.N.Y. 2007) ("A-1 Jewelry II") (amended complaint).

Extensive discovery since then has suggested that at least forty-one additional guns sold by Adventure between 2000 and 2007 may have been recovered in connection with crimes in New York City. In addition, there is information that two guns sold by Adventure prior to 2000 were recovered in connection with crimes in 2003 and 2004, and three more were transferred by the original purchaser to another person and were destined for the New York City illegal gun market. This represents a total of seventy-two guns sold by Adventure, compared to twenty-six guns considered when Adventure's earlier motions to dismiss were denied inA-1Jewelry IandA-1 Jewelry II.Discovery of these additional guns has allegedly shortened the time-to-crime for guns sold by Adventure from 3.5 to 2.18 years.See A-1 Jewelry I,501 F.Supp.2d at 378-79,401-02(describing the importance of time-to-crime and Adventure's time-to-crime average).

No reason to modify the analysis set forth inA-1 Jewelry IandA-1 Jewelry IIhasWest Page 132been provided. Evidence allegedly obtained by the City of New York since the denial of Adventure's motions to dismiss demonstrates a stronger basis for exercising personal jurisdiction over this defendant. Adventure's motion for summary judgment on lack of personal jurisdiction is denied.

III. Public Nuisance

Adventure's and other defendants' motion to dismiss for failure to state a claim of public nuisance has previously been rejected.See A-1 Jewelry II,247 F.R.D. at 342-50. Unconvincing is Adventure's argument that the grant of summary judgment in favor of a gun-retailer inSmith v. Atlantic Gun Tackle, Inc.,376 F.Supp.2d 291(E.D.N.Y. 2005) should bar the instant suit. Summary judgment inSmithwas granted because an individual-plaintiff could not establish particular danger to himself from the alleged nuisance prior to the killing at a Wendy's food store by a gun.See Smith,376 F.Supp.2d at 292;seealso Johnson v. Bryco Arms,304 F.Supp.2d 383,392(E.D.N.Y. 2004) ("A private plaintiff does not have standing to bring a public nuisance cause of action unless he or she shows some harm different from that suffered by the public generally."). A municipal corporation seeking to "protect the safety of an entire community" is not subject to theSmithdecision.See A-1 JewelryI,501 F.Supp.2d at 425.

A genuine issue of material fact exists as to whether a public nuisance exists in New York City and whether Adventure may be held responsible for this nuisance.See A-1 Jewelry II,247 F.R.D. at 342-50. Summary judgment is denied.SeeFed.R.Civ.P.56.

IV. PLCAA

A similar motion to dismiss on the ground that a lawsuit is prohibited by the PLCAA,15 U.S.C. § 7902previously has been denied.See A-1 Jewelry II,247 F.R.D. at 349-54. The recent decision of the Court of Appeals for the Second Circuit inCityof New York v. Beretta U.S.A Corp.,524 F.3d 384, (2d Cir. 2008), based on alleged violation of astate general lawis irrelevant. As noted inA-1 Jewelry II, there are alleged in the instant action substantial violations ofspecific federal lawsapplicable to the sale and marketing of firearms which allegedly proximately cause harm to the City of New York.See A-1 Jewelry II,247 F.R.D. at 349-54. Defendant's motion for summary judgment on the ground that the action is barred by the PLCAA is denied.

V. Conclusion

Summary judgment for defendant is denied. Genuine issues of material facts exist requiring a trial. Trial shall commence on May 27, 2008 by selection of a jury.SeeTranscript of Hearing on May 21, 2008.

SO ORDERED.West Page 132