Willigan v. Sears, Roebuck & Co. 33 A.D.2d 1033

Appeal by defendant from an order of the Supreme Court, Nassau County, dated June 4, 1969, which denied its motion for summary judgment (CPLR 3212) or, in the alternative, for judgment dismissing the second cause of action for its failure to state a cause of action (CPLR 3211, subd. [a], par. 7). Order reversed, on the law, without costs, and motion for summary judgment granted. In the absence of any claim that the firearm was defective when sold, it is our opinion that defendant, which sold a rifle to a 17-year-old boy, such sale not being prohibited by statute (cf. former Penal Law, § 1898, subd. 5, which provided that the seller of a firearm to a minor under the age of 16 years is guilty of a misdemeanor), cannot be held liable for an injur;' to a third person resulting from the negligent or improper use of the rifle by the purchaser (cf. Corey v. Kaufman & Chernick, 70 R. I. 27; Wyllie v. Palmer, 137 N. Y. 248). Beldoek, P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.