Summary
dismissing suit by victim of criminal shooting against retail seller of gun: "[A]s a matter of law, there could be no finding of proximate cause under the circumstances of this case. The sale of a shotgun merely furnished the condition for the unfortunate occurrence."
Summary of this case from NAACP v. AMERICAN ARMS, INC./ACUSPORT CORP.Opinion
July 11, 1994
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.
It is well-settled that "where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement" (Zuckerman v. City of New York, 49 N.Y.2d 557, 560). Here, the plaintiff offered no proof of the citizenship of Humberto Del Rio, the person to whom the defendant sold the shotgun that was used to kill the plaintiff's decedent, other than her attorney's hearsay affirmation. Therefore, the Supreme Court erred in failing to grant summary judgment to the defendant.
In any event, as a matter of law, there could be no finding of proximate cause under the circumstances of this case. The sale of a shotgun merely furnished the condition for the unfortunate occurrence (see, Margolin v. Friedman, 43 N.Y.2d 982, 983; Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 711-712; see also, Fly v. Cannon, 836 S.W.2d 570 [Tenn]; Hulsman v Hemmeter Dev. Corp., 647 P.2d 713 [Haw]; Robinson v. Howard Bros., 372 So.2d 1074 [Miss]). Therefore, summary judgment should have been granted to the defendant. Thompson, J.P., O'Brien, Ritter and Krausman, JJ., concur.