Masone v. Unishops of Modell's Inc.

— In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Queens County, dated May 21, 1979, which granted plaintiffs’ motion for reargument of the granting defendants’ motion for summary judgment and, upon 612 reargument, denied defendants’ motion. Order reversed, on the law, with $50 costs and disbursements, and motion for summary judgment is granted. Plaintiffs initiated this action predicated upon an alleged illegal sale by defendants of an "air rifle” to Frank Gianotti, a 12 year old, in violation of subdivision 5 of section 265.10 of the Penal Law. Defendants sought summary judgment dismissing the complaint upon the ground that the purchase of the rifle had been made by Frances Gianotti, Frank’s mother. The motion for summary judgment should be granted. The record, viewed in a light most favorable to plaintiffs, establishes only that Frank was present at the time Frances made the purchase and that he also carried the gun from the store after the rifle was bought. There is no allegation that he either handled the rifle in the store or received instruction on its use. It was incumbent upon plaintiffs to submit evidentiary facts or materials which would establish that the rifle was "disposed of’ to a minor (see Indig v Finkelstein, 23 NY2d 728). As a matter of law, the child being present in the store and carrying the gun out of the store did not establish the requisite "disposition” necessary for the finding of a violation of subdivision 5 of section 265.10 of the Penal Law. O’Connor, J. P., Rabin and Gulotta, JJ., concur.