        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

417
CA 11-01808
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


CHRISTIAN DUQUIN, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

ANDREW CHAMELI, DAWN CHAMELI, JAMES CHAMELI,
DEFENDANTS-RESPONDENTS,
AND WAL-MART STORES, INC., CARE OF CT
CORPORATION SYSTEM, DEFENDANT-APPELLANT.


BROWN & HUTCHINSON, ROCHESTER (R. ANDREW FEINBERG OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROWN & KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered November 16, 2010. The order, insofar as
appealed from, denied in part the motion of defendant Wal-Mart Stores,
Inc., Care of CT Corporation System, for summary judgment dismissing
the cross claim of defendants Andrew Chameli, Dawn Chameli and James
Chameli.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
in its entirety, and the cross claim against defendant Wal-Mart
Stores, Inc., Care of CT Corporation System, is dismissed.

     Memorandum: By the amended complaint in this case, plaintiff
sought damages from defendant Wal-Mart Stores, Inc., Care of CT
Corporation System (Wal-Mart), and Andrew Chameli, Dawn Chameli and
James Chameli (collectively, Chameli defendants), for injuries that he
allegedly sustained when he was struck by a paintball pellet. By a
prior order that is not at issue in this appeal, Supreme Court granted
Wal-Mart’s motion for summary judgment dismissing the amended
complaint against it. Wal-Mart now appeals from an order that, inter
alia, denied that part of its motion for summary judgment dismissing
the cross claim asserted against it by the Chameli defendants insofar
as they sought contribution, but granted the motion insofar as they
sought indemnification. We agree with Wal-Mart that, under the
circumstances presented here, it owed no duty of care to plaintiff,
and thus the court should have granted the motion in its entirety.

     The Chameli defendants sought contribution from Wal-Mart on the
theories that Wal-Mart was negligent per se because it sold a
                                 -2-                           417
                                                         CA 11-01808

paintball gun to plaintiff in violation of Penal Law § 265.10 (5), and
that Wal-Mart was negligent in the marketing and sale of paintball
guns. Neither theory supports a claim for contribution in this case.

     Under Penal Law § 265.10 (5), “[a]ny person who disposes of any
of the weapons, instruments, appliances or substances specified in
section 265.05 [of the Penal Law] to any other person under the age of
sixteen years is guilty of a class A misdemeanor,” and “[i]t is
undisputed that a paintball gun uses ‘spring or air’ as the propelling
force within the meaning of Penal Law § 265.05, which prohibits the
unlawful possession of weapons by persons under 16” (Herdzik v
Chojnacki, 68 AD3d 1639, 1641; see DiSilvestro v Samler, 32 AD3d 987,
988-989). Here, however, it is undisputed that plaintiff was not
injured by the paintball gun that he purchased from Wal-Mart but,
rather, another paintball gun used by one of the Chameli defendants
allegedly caused plaintiff’s injuries. “In the ordinary circumstance,
common law in the State of New York does not impose a duty to control
the conduct of third persons to prevent them from causing injury to
others; liability for the negligent acts of third persons generally
arises when the defendant has authority to control the actions of such
third persons” (Purdy v Public Adm’r of County of Westchester, 72 NY2d
1, 8, rearg denied 72 NY2d 953). By establishing that it did not sell
the paintball gun that caused plaintiff’s injury and that it had no
authority to control the conduct of the Chameli defendants, Wal-Mart
met its burden on the motion with respect to Penal Law § 265.05 (see
generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

     In addition, by establishing that plaintiff was not injured by a
paintball gun that it sold, Wal-Mart met its burden with respect to
the Chameli defendants’ negligent marketing and sales theory.
Furthermore, “plaintiff[] did not present any evidence tending to show
to what degree [his] risk of injury was enhanced by the presence of
negligently marketed and distributed [paintball] guns, as opposed to
the risk presented by all [paintball] guns in society” (Hamilton v
Beretta U.S.A. Corp., 96 NY2d 222, 235).

     Inasmuch as the Chameli defendants failed to raise a triable
issue of fact as to any common-law or statutory authority pursuant to
which Wal-Mart had a duty to plaintiff that would render it liable for
contribution to the Chameli defendants (see generally Zuckerman v City
of New York, 49 NY2d 557, 562), the court was required to grant the
motion in its entirety and dismiss the cross claim of the Chameli
defendants.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
