J.B. v R.M.

[*1] J.B. v R.M. 2015 NY Slip Op 51991(U) Decided on August 10, 2015 Supreme Court, Greene County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 10, 2015
Supreme Court, Greene County

J.B., an Infant, by Aileen M., his parent and natural guardian, and Aileen M., Individually, Plaintiffs,

against

R.M., an Infant, by Janet W., his parent and natural guardian, Defendant.



13-1177



Mark D. Greenberg, Esq.

Counsel for Plaintiffs, movant

Greenberg & Greenberg

Four East Court Street

Hudson, New York 12534

Jennifer L. Dominelli, Esq.

Counsel for Defendant

Flink Smith Law LLC

449 New Karner Road

Albany, New York 12205
Lisa M. Fisher, J.

This is a personal injury matter wherein infant-Plaintiff J.B. was injured on July 30, 2012, when he was shot in the eye by infant-Defendant R.B. Both boys were 12 years old on the date of the accident. They were at the home of Plaintiffs with R.B.'s 10-year-old sister, G.M. J.B.'s mother, Plaintiff Aileen M. (hereinafter "Aileen"), was present and outside tending to a pool which was being set up and mowing the lawn.

G.M. and the two boys were in the living room taking turns playing video games. They decided to play capture the flag outside with airsoft guns. G.M. wanted to play too. There was testimony that there was horseplay between J.B. and G.M., including that they were playfully hitting each other. J.B. fetched an airsoft gun from his room to chase G.M. out of Aileen's bedroom. Ultimately, J.B. shot G.M. in the leg with the airsoft gun to test whether she could withstand the pain to play capture the flag with them.

J.B. placed the airsoft gun back into his room and went to message another friend to come over; it was not clear if this was over the telephone or via X-box messenger. At some point during this time, R.M. went into J.B.'s room to get an airsoft gun. R.M. brought the airsoft gun out of the bedroom and into the living room. He was trying to turn the safety of the airsoft gun on but it was not working properly—he testified it felt "sticky" and the safety button would [*2]not stay down. He alleges that he got the safety turned on and was bringing it to show J.B. when he "accidentally pulled the trigger by accident and shot [J.B.]." The bullet lodged into J.B.'s eye causing serious personal injury.

J.B. claims that he had no problem with this airsoft gun's safety mechanism prior to the accident and R.M. was not complaining to him about the safety as he was walking up to J.B. G.M. testified that R.M. came out of the bedroom with the airsoft gun in his hands and he appeared to be looking for the safety because he was turning and twisting the airsoft gun around like he was looking for something. J.B. testified that when R.M. came into the living room, he was pointing the airsoft gun directly at his face and eye. The airsoft gun was at eye level because J.B. was sitting down and R.M. was standing up. R.M. testified that he previously took a hunter's safety course and acknowledged he was taught and knew to not point a gun at anything he did not intend to shoot.

J.B. purchased the airsoft guns with Aileen present and with her credit card. J.B. inadvertently purchased more airsoft guns than he intended to due to a checkout error; the total number was between 10 and 25 airsoft guns. When the airsoft guns arrived, Aileen initially took them away from J.B. as punishment for accidently buying so many. When she returned the airsoft guns to J.B., they were kept in his bedroom. He was allowed to use the airsoft guns whenever he wanted and without having to secure Aileen's further permission to do so. She also allowed J.B.'s friends to play with the airsoft guns. The only rule to using the airsoft guns was each participant must wear a safety mask or goggles to protect his or her face and eyes.

On the day of the deposition, J.B. testified that he "definitely" produced the airsoft gun which resulted in his eye injury. However, R.M. testified that he did not believe it was the same airsoft gun because the safety button was different, it did not feel the same way in his hands, and it did not make the same sound. J.B. testified that the other airsoft guns were thrown out after the accident except for the subject airsoft gun.

Plaintiffs move for partial summary judgment pursuant to CPLR R. 3212, arguing that "[t]here is no question that the shooting was due to the negligence of [Defendant R.M.] (i.e., an accident and not an intentional assault)." Plaintiffs claim that J.B. in the eye, and based on the Fourth Department case of Shroff v Falla, 229 AD2d 1031 (4th Dept 1996), Plaintiffs are entitled to a judgment as a matter of law.

Defendant opposes the motion, arguing that questions of fact exist which preclude summary judgment. Specifically, Defendant argues that there is a significant question of fact as to whether or not the airsoft gun produced for inspection at the deposition is the same airsoft gun involved in the accident. Otherwise, Defendant claims this is spoliation of evidence which prevents Defendant from determining "what the proximate cause of the gun discharging may have been, i.e. was it the malfunction of the safety on the gun itself that resulted in the discharge as opposed to the defendant discharging the gun." Further, Defendant argues that the presence of his counterclaim against Plaintiff Aileen precludes summary judgment as it raises genuine issues of material fact as to the comparative fault attributed to the mother. This counterclaim is for negligent entrustment of a dangerous instrumentality, which Defendant avers precludes summary judgment.

Plaintiffs submit a reply affirmation, arguing that Defendant has raised spoliation for the first time in the defense of the instant motion and, notwithstanding, such claim has no bearing on the negligence of Defendant R.M. in shooting Plaintiff J.B. in the eye. Plaintiffs also claim that a claim for potential contribution from a parent does not impact the ability of the parent's child to [*3]obtain summary judgment on liability. For support, Plaintiffs cite to General Obligations Law § 3-111 which states that any contributory negligence of the infant's parent shall not be imputed to the infant.

It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003].) Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].)

Here, Plaintiffs met their initial burden of demonstrating prima facie entitlement to judgment as a matter of law. J.B. was sitting on the couch in the living room attempting to contact another friend to come over when R.M. entered the room holding the airsoft gun which fired a pellet directly into J.B.' eye. (See Shroff, 229 AD2d at 1031.) Only R.M. was holding the airsoft gun, and he was doing so with the muzzle aimed directly at J.B. and his face even though R.M. had been trained to never point a firearm at anything he did not intend to shoot.

Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination." (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."].)

Here, Defendant has failed to do so. Defendant's claim for spoliation is without merit. Initially, the Court observes Defendant did not cross-move for such relief nor cite any applicable law in support of his position. Rather, Defendant made conclusory and speculative statements that are unsupported by the record, such as his reason for seeking spoliation which is allegedly to determine whether a malfunction of the safety in the airsoft gun resulted in the discharge as opposed to R.M. discharging the airsoft gun. However, R.M. admitted at his deposition that he "accidentally pulled the trigger by accident and shot [J.B.]." Thus, there can be no question by Defendant's own sworn admission that a malfunction of the airsoft gun did not discharge the pellet—he averred he pulled the trigger. Thus, there is no question as to the proximate cause of the discharge, contrary to Defendant's opposition.

Notwithstanding, while J.B. and R.M. disagree as to whether the airsoft gun produced for inspection was in fact the injury-producing gun, the Court agrees with Plaintiff that it has no bearing on the ultimate outcome of liability. R.M. was negligently pointing the airsoft gun directly at J.B.' face and R.M. admitted he accidently pulled the trigger discharging the airsoft [*4]gun. There is no need to inspect the actual airsoft gun under these facts given the crystal-clear testimony of R.M..

While the Court observes that Defendant has a counterclaim for negligent entrustment of a dangerous instrument to a minor, CPLR R. 3212 (e) permits the Court to grant summary judgment "as to one or more causes of action, or part thereof, in favor of any one of more parties, to the extent warranted, on such terms as may be just." Under this subdivision, "the court, in the proper exercise of discretion, may enter partial summary judgment although there exist remaining counterclaims to be tried . . . unless the counterclaims are so inseparable from plaintiff's cause of action that entry of judgment should be withheld." (Accord Farmers Co-op. v Levine, 36 AD2d 656, 656 [3d Dept 1971], citing Dalminter, Inc. v Dalmine, S. p. A., 29 AD2d 852, 853 [1st Dept 1968], aff'd 23 NY2d 653 [1968].)

At first glance it may appear that Defendant's counterclaim is too interwoven and inseparable from Plaintiff's cause of action to warrant summary judgment. However, just because claims are relevant does not make them inseparable. The Court observes two distinct acts which affect liability. The first act being when R.M. admitted to accidentally pulling the trigger which fired a pellet into J.B.'s eye. The second act being when Aileen purchased and permitted J.B. and R.M. to have the airsoft guns, i.e., negligent entrustment. These two acts are separate.

This case is different than the case cited by Defendant, DiSilvestro v Samler, 32 AD3d 987 [2d Dept 2006], wherein the Court denied the plaintiff's motion for cross-motion for summary judgment where he was shot in the eye during a paintball "battle" because there was still the question of any comparative negligence attributable to the infant plaintiff which was not discussed in the record. Here, R.M. agreed that J.B. did not contribute to the happening of the accident, thus he is without any comparative fault. (See also Enker v Slattery Const. Co., 34 AD2d 673 [2d Dept 1970] [denying summary judgment where there is an issue as to the plaintiff's contributory negligence].) Whereas Aileen's role in this accident is not couched in one of comparative fault, but rather a separate claim of negligence which may result in contribution. Notwithstanding, under General Obligations Law § 3-111 "[i]n an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant."

As such, and under such terms as may be just given the facts and Defendant's candid admission, Plaintiffs' motion for partial summary judgment is granted. While under the circumstances the Court believes this is the only just outcome, the Court acknowledges that, other than damages, the main crux of the dispute is—and has always been—what, if any, liability does Plaintiff Aileen share in the happening of this accident. Therefore, Defendant's counterclaim against Plaintiff Aileen is still viable and shall be the only remaining issue of liability going forward.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Plaintiff's motion for partial summary judgment is GRANTED.

This constitutes the Decision and Order of the Court. Please note that a copy of this [*5]Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: August 10, 2015E N T E R :

Catskill, New York

_______________________________

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

Notice of motion dated April 3, 2015; affirmation in support of motion for partial summary judgment of Mark D. Greenberg, Esq., with annexed exhibits, dated April 3, 2015;

Affirmation of Jennifer L. Dominelli, Esq., dated May 8, 2015; and

Reply affirmation of Mark D. Greenberg, Esq., dated May 14, 2015.