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805896/2023
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STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE

DIONA PATTERSON, individually and as Adminsitrator

of the ESTATE OF HEYWARD PATTERSON, J.P., a minor;
BARBARA MAPPS, Individually and a Executrix of the
ESTATE OF KATHERINE MASSEY; SHAWANDA
ROGERS, Individually and as Administrator of the
ESTATE OF ANDRE MACKNEIL; A.M., a minor;
and LATISHA ROGERS,

Plaintiffs,
DECISION AND ORDER
Re: Motion #18
vs. Index No. 805896/2023

META PLATFORMS, INC., formerly known as

FACEBOOK, INC.; SNAP, INC.; ALPHABET, INC.;
GOOGLE, LLC; YOUTUBE, LLC; DISCORD, INC.,;
REDDIT, INC.; AMAZON.COM, INC.; 4CHAN, LLC;
4CHAN COMMUNITY SUPPORT, LLC; GOOD SMILE
COMPANY INC.; GOOD SMILE COMPANY US, INC.;
GOOD SMILE CONNECT, LLC; RMA ARAMENT;
VINTAGE FIREARMS; MEAN LLC.; PAUL GENDRON;
PAMELA GENDRON,

Defendants.

HON. PAULA L. FEROLETO, J.S.C.

Argued by: Kristen Elmore-Garcia, Esq., Attorney for Diona Patterson, et al.
Christopher Renzulli, Attorney for Mean LLC

DECISION AND ORDER

Defendant Mean, LLC has brought a Motion to Dismiss pursuant to CPLR §§3211(a)(3),

(7) and (8) filed on September 1, 2023. NYSCEF documents 153 to 165. An opposition

memorandum of law is at document 226 along with an affidavit and exhibits at documents 227 -

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230. In reply is a memo of law at document number 346 and correspondence to the court

supplementing a definitional section of the Protection of Lawful Commerce in Arms Act,

NYSCEF Doc. No 388. These have all been considered in this decision.

There are six causes of action against Mean (NYSCEF, Doc. 1). The claims center

around claimed violations of General Business Law §§349 and 350. The primary defense is that

the Protection of Lawful Commerce in Arms Act (PLCAA) applies requiring dismissal of the

case against Mean LLC.

Mean LLC also argues that they do not do business in New York State and therefore there

is no jurisdiction pursuant to CPLR §302.

Facts as they relate to Mean LLC

Specific allegations as to Mean LLC are at ¶¶ 503 - 528 of the Complaint and for

purposes of this motion must be taken as true. (NYSCEF Doc. 1).

The plaintiffs allege Payton Gendron, used a Bushmaster XM-15 rifle which he

purchased with an installed MA Lock. The “lock” designed, manufactured, and sold by MEAN

LLC (“Mean”) converts assault weapons that may otherwise be illegal in New York into legal

firearms by “locking” a magazine in place, thereby preventing a rifle from accepting a detachable

magazine. (This will hereinafter be referred to as the “lock” or MA Lock.) In New York State

no more than ten (10) rounds can be in a magazine and again the magazine must be fixed so

detachable magazines can not be used on the weapon. The MA Lock replaces a rifle’s magazine

release button. A magazine release button is designed to temporarily lock a magazine in place.

Malfa Aff. ¶ 13. (NYSCEF doc. 154). When the MA Lock is installed in place of the magazine

release button, it fixes the magazine to the rifle.

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The MA lock packaging comes with a printed four step process on the back detailing

how the “lock” can be removed. (NYSCEF Doc.1¶ 521; Doc. 159 Exhibit 5). The plaintiffs

claim the lock was easily removable, the shooter followed the instructions removing the lock so

the Bushmaster XM150E2S could accept removable magazines. (NYSCEF Doc. 1 ¶525).

The MA lock is designed to hold a magazine with the maximum capacity of ten (10)

bullets. The lock was removed by the shooter so the AR 15 could be used with detachable

magazines holding more than the New York State maximum capacity. He was able to kill ten

people and wound three in two minutes.

The plaintiffs allege Mean’s “lock” defies New York law and is so simple to remove that

it aids the illegal possession of assault weapons. (NYSCEF Doc. No. 1. ¶¶ 527 - 528.)

The Tops shooter removed the MA Lock from his rifle and wrote about it in his Discord diary.

(NYSCEF Doc. 1 ¶ ¶519-520).

Protection of Lawful Commerce in Arms Act

Mean LLC argues plaintiffs’ claims are barred by 15 USC §§7901-03 (PLCAA). This is

a federal immunity statute. The stated purposes of the PLCAA is to “prohibit causes of action

against manufacturers . . . of firearms or ammunition products … for the harm solely caused by

the criminal or unlawful misuse of firearm products or ammunition products by others when the

product functioned as designed and intended.” Id. § 7901(b)(1).

A claim is barred if it is “brought by any person against a manufacturer . . . of a qualified

product . . . for damages, punitive damages, injunctive or declaratory relief, or penalties or other

relief resulting from the criminal or unlawful misuse of a qualified product by . . . a third

party . . .” 15 U.S.C. § 7903(5)(A). Mean, LLC is a manufacturer of firearms and other related

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products. (NYSCEF Doc. No. 158 Ex. 4.) Mean, LLC claims the MA Lock is a qualified

product.

The PLCAA defines a “qualified product” as a firearm, ammunition, “or a component

part of a firearm or ammunition, that has been shipped or transported in interstate or foreign

commerce.” 15 U.S.C. § 7903(4). Mean LLC argues the MA Lock is a “component part” so the

protection of PLCAA applies. It is clearly not a firearm or ammunition.

PLCAA does not define “component part”. "Statutory construction must begin with the

language employed by Congress and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

175-76, (2009). In the absence of any statutory definition, a court's interpretation looks to the

plain and common meaning of the word derived from dictionary definitions.

Merriam-Webster’s dictionary defines component, when used as an adjective, as

“serving or helping to constitute”. So the question is whether the MA Lock constitutes a part of a

weapon. Part is defined as "one of the often indefinite or unequal subdivisions into which

something is or is regarded as divided and which together constitute the whole," or "an essential

portion or integral element." If it is not a “component part” is it an accessory defined as “an

object or device that is not essential in itself but adds to the beauty, convenience or effectiveness

of something else”.

In Sambrano v. Savage Arms, Inc., the New Mexico Court of Appeals held that a "cable

gun lock," an attachable cord enabling consumers to secure firearms, is an accessory. 2014-

NMCA 113, 338 P.3d 103, (N.M. App. 2014). The injuries in Savage arose from the use of a

rifle, manufactured and distributed by Savage, which was sold with an NAD lock. The lock was

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removed with a “key that was not a designated key for unlocking” the lock and the gun was used

to kill the plaintiff’s decedent. That the lock was an accessory was not disputed by Savage or the

plaintiff. The court dismissed the claim against Savage Arms, Inc. as the rifle was a qualified

product, but found PLCAA did “not preclude Plaintiffs’ claims against NAD, the lock

distributor.” Id. 38P.3d at 105.

In Auto-Ordnance Corp. v. United States, the court found that "sights and compensators"

are accessories because "the carbine will fire without the sights or compensator." 822 F.2d 1566,

1570-72 (Fed. Cir. 1987).

Mean also submitted a portion of an oral argument transcript in which the NYS Attorney

General’s office, argued on November 3, 2023 before the Second Circuit Court of Appeals in

National Shooting Sports Foundation, Inc. V. James (no.22-1374). In response to a question

from the bench counsel indicated the definition of “qualified product” was very broad, going so

far as to say “if you manufacture a piece of vulcanized rubber and you ship it out of state and

somebody else attaches it to their firearm, that’s also considered a qualified product.”

(NYSCEF Doc. 388).

No courts have ruled on whether a fixed magazine lock is an essential component part of

a firearm or an accessory. Here the gun was manufactured without a lock on it. The lock was

added in an attempt to comply with New York state gun laws. This Court finds that the MA

Lock is not an integral part of the gun because the lock could be and was removed and the

firearm was still able to function. Therefore this court finds the MA Lock is not a “qualified

product” and PLCAA does not prevent this personal injury lawsuit.

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This court declines to provide the broad immunity suggested by Mean LLC in which they claim

immunity as a manufacturer of qualified products, even though they did not manufacture the gun

used in this shooting. “The PLCAA preempts specified types of liability actions; it does not

provide a blanket protection to specified types of defendants.” Ileto v. Glock Inc., 565 F.3d

1129, 1145 (9th Cir. 2009). Plaintiffs were harmed when the shooter used a qualified product

(AR 15) manufactured by a different entity (Bushmaster); Mean may not step into Bushmaster’s

shoes for purposes of PLCAA. The protection of PLCAA is not transferable among

manufacturers.

Having determined the MA Lock is an accessory and not a “qualified product” this court

does not need to reach the question of whether a “predicate exception” allowing an action against

a manufacturer or seller of firearms is met in this case.

The CPLR 3211(a)(8) motion.

Mean LLC bases their argument on the lack of contacts between this Georgia limited

liability company and the State of New York. In reliance on CPLR §302 they argue New York

State is not the proper forum for this lawsuit.

Mean has timely asserted a claim that the court does not have personal jurisdiction. They

are not a New York corporation and do not have a principal place of business in New York.

A determination must be made as to whether the action is permissible under the long-arm

statute (CPLR §302) and also complies with due process. As to whether there is jurisdiction

under CPLR §302(a)(1) the court must look to determine whether a defendant conducted

sufficient activities within the state; and second, whether a plaintiff's claims have an articulable

nexus to a defendant's transactions within the state (English v Avon Products, Inc., 206 AD3d

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404, 406 (1st Dept 2022)). If specific jurisdiction exists, the Court still must determine whether

the exercise of jurisdiction comports with due process (Williams v Beemiller, Inc., 33 NY3d 523,

529 (2019)). Pursuant to CPLR § 302(a)(3)(ii) plaintiff must show: (1) the defendant

committed a tortious act outside New York; (2) the cause of action arose from that act; (3) the

tortious act caused an injury to a person or property in New York; (4) the defendant expected or

should reasonably have expected the act to have consequences in New York; and (5) the

defendant derived substantial revenue from interstate or international commerce. Penguin Group

(USA) Inc. v. Am. Buddha, 16 N.Y.3d 295, 302 (2011); see also LaMarca v. PakMor Mfg. Co.,

95 N.Y.2d 210 (2000).

Plaintiffs allege Mean sells “locks and other products ... in this State and Plaintiffs’

injuries arise out of and relate to Mean Arms’ purposeful availment”. (NYSCEF Doc. 1 ¶ 36.)

CPLR 302 (a) (3) (ii) allows personal jurisdiction over a non-domiciliary when, among other

things, such party (1) "expects or should reasonably expect the act to have consequences in the

state"; and (2) "derives substantial revenue from interstate or international commerce" (CPLR

302 [a] [3] [ii]). Plaintiffs have detailed comments and information on the Mean website directed

to New York and as to this specific lock. Plaintiffs allege Mean “advertises on its website to

potential purchasers that the MA Lock ‘[o]nce installed, it cannot be removed with a tool, which

satisfies CA and NY state law’” and in its patent application for a firearms lock, Mean refers to

states with “anti-firearm laws.” (NYSCEF Doc. 1 ¶¶ 509-510). Mean acknowledges its web page

referenced the “NY Safe Act” and “shipping to customers in . . . NY.”.(NYSCEF Doc. No. 165

Def’s Br. at pg. 28.) On or before May 10, 2023, Mean changed its website to state that it would

no longer ship the MA Lock to New York. (NYSCEF Doc. 1 ¶ 526.) This certainly implies it was

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shipping to New York prior to May 10, 2023. Together, these facts, should have given Mean

Arms the expectation that their MA Lock was being purchased and used in New York State and

should its lock fail to act as intended, i.e. be permanent, consequences would follow in New

York State. By selling products outside of Georgia, Mean derives substantial revenue in

interstate commerce. As such, Mean is subject to the jurisdiction of this Court. Sufficient facts

have been pled under CPLR 302(a)(3) to demonstrate New York State has jurisdiction.

Proximate Cause

There were many events and actions that took place between the shooter beginning and

ending his plan to commit a mass shooting which included criminal acts. The Complaint sets

forth in detail the development of the plan culminating in the shootings. (NYSCEF Doc. 1) Part

of defendant’s argument is that the criminal actions of the shooter break the chain of causation

between his removal of the fixed lock and the ensuing shooting.

As a general proposition the issue of proximate cause between the defendants’ alleged

negligence and the plaintiffs’ injuries is a question of fact for a jury to determine. Oishei v.

Gebura 2023 NY Slip Op 05868 ( 4th Dept 2023). Part of the defendant’s argument is that the

criminal acts of the third party, break any causal connection, and therefore causation can be

decided as a matter of law. There are limited situations in which the New York Court of

Appeals has found intervening third party acts to break the causal link between parties. These

instances are where “only one conclusion may be drawn from the established facts and where the

question of legal cause may be decided as a matter of law.” Derdiarian v Felix Contr. Corp., 51

NY2d 308 at 315 (1980). These exceptions involve independent intervening acts that do not

flow from the original alleged negligence. Id.

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At this juncture of the litigation it is far too early to rule as a matter of law that the actions of

Mean require dismissal on proximate cause. The facts alleged do not show “only one

conclusion” that could be made as to the connection between defendant’s alleged negligence and

the plaintiffs’ injuries (quoting Derdiarian 51 NY2d). The acts of the third party, even though

criminal, do not necessarily transform the inquiry into a question of law. (See Oishei v. Gebura,

2023 NY Slip Op 05868, 221 A.D.3d 1529 (4th Dept.), holding the intervening criminal act did

not amount to an exception to the general rule of allowing the fact finder to determine proximate

cause). At this early stage of the litigation the motion is denied.

General Business Law §§ 349 and 350

Defendant Mean, LLC has also moved to dismiss plaintiff’s causes of action numbered

Eighteenth and Nineteenth which allege violations of GBL §§349 and 350. They seek dismissal

pursuant to CPLR §§3211(a)(3) and 3211(a) (7) arguing the plaintiffs lack standing to bring the

claims and failure to state cognizable legal claims.

The standing argument is based on the plaintiffs claims being “derivative”. They were

not the purchasers/consumers of the MA lock. General Business Law §349 is a consumer

protection statute designed to protect against "[d]eceptive acts or practices in the conduct of any

business, trade or commerce or in the furnishing of any service in this state" (General Business

Law § 349 [a]). Though originally intended to be enforced by the Attorney General (see General

Business Law § 349 [b]), the statute was amended in 1980 to include a private right of action

(L 1980, ch 346). The amendment was intended to afford additional protection for consumers,

allowing them to bring suit on their own behalf without relying on the Attorney General for

enforcement (see Assembly Mem in Support, Bill Jacket, L 1980, ch 346; see also Memo of Atty

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Gen, Bill Jacket, L 1980, ch 346 [suggesting that the Attorney General must focus on those cases

that have a widespread effect and that the measure would allow individuals to prosecute

remaining actions]). Thus, "any person who has been injured by reason of any violation of this

section may bring an action in his own name to enjoin such unlawful act or practice, an action to

recover his actual damages or fifty dollars, whichever is greater, or both such actions".

Defendant cites Blue Cross v. Philip Morris, 3 NY3d 200 (2004) wherein the court held

that “a third-party payer has no standing to bring an action under General Business Law §349

because its claims are too remote”. Blue Cross v. Philip Morris, id. at 208. This court does not

read the case as broadly as Mean, LLC would like to interpret it. In the same decision the Court

of Appeals also stated, “in holding that third-party payers cannot recover derivatively under the

General Business Law, we recognize that section 349 is a broad, remedial statute and that the

provision creating a private right of action employs expansive language.” Blue Cross v. Philip

Morris, id. at 207. Unlike the plaintiff health insurance company in Blue Cross seeking recovery

for health insurance payments to subscribers impacted by smoking; the plaintiffs in this case have

direct injuries. GBL §349(h) authorizes “any person who has been injured by reason of any

violation of this section” to file suit for injunctive and/or monetary relief.

The plaintiff’s have sufficiently pled causes of action under the General Business Law.

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THEREFORE, IT IS HEREBY

ORDERED, Mean, LLC’s motion to dismiss is denied in its entirety.

This constitutes the Decision and Order of this court. Submission of an Order by the parties is

not necessary. Receipt of notice of the uploading of this Decision and Order by the court to

NYSCEF shall not constitute notice of entry.

Signed this 9th day of February, 2024 at Buffalo, New York.

________________________________________
HON. PAULA L. FEROLETO, J.S.C.

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