People v. Sturm, Ruger & Co.

Rosenberger, J. (dissenting).

I respectfully dissent.

The majority concludes that defendants’ pre-answer motion to dismiss, brought pursuant to CPLR 3211 (a) (7), should be granted and the complaint dismissed, based upon unfounded fears that a tidal wave of frivolous public nuisance litigation will ensue. In reaching this conclusion, the majority abandons firmly established procedural rules governing such motions, to reach a result that is neither well founded nor necessary.

*107 The Attorney General of the State of New York, acting in parens patriae for the people of the State, brings this action, not for money damages but for abatement of a public nuisance, against defendants, manufacturers and wholesalers of handguns that have been identified by law enforcement authorities as having been involved in the commission of various crimes. The Attorney General alleges that the proliferation of handguns which are used in the commission of crimes in New York State constitutes a “public nuisance” as declared by Penal Law § 400.05 (l) 1 and under the common law, not only because of the significant number of deaths and injuries they cause each year, but also because they interfere with the general public’s safety and its right and ability to use and enjoy public areas. The complaint details, among other things, the gruesome number of homicides and other illegal gun-related deaths and injuries that occur in New York each year.

The complaint alleges that defendant manufacturers are made aware through, among other means, trace requests made in the course of criminal investigations by the United States Bureau of Alcohol, Tobacco and Firearms (BATF), that certain types of the guns they design and manufacture are disproportionately involved in crimes and that a disproportionate number of crime-related guns have been supplied by defendant manufacturers through particular wholesalers with whom the manufacturers do business. The complaint also alleges that defendant wholesalers similarly are put on notice through BATF trace requests that certain types of the guns they sell to retailers are disproportionately involved in crimes and that certain retailers whom they supply with firearms sell a disproportionate number of crime-related guns.

The heart of the complaint is set forth in the allegations that defendants, having been made aware, through BATF information requests and other means, of the types of firearms that are most often associated with crime and of the wholesale and retail outlets that are disproportionately involved in the distribution and sale of such “crime guns,” continue to design, produce, market, sell and distribute these guns in such ways as to contribute to the public nuisance of illegal guns used in the commission of crimes. In particular, the complaint alleges, inter alia, that defendant manufacturers increase the number *108 of guns they produce to meet the demand and take advantage of the market for illegal guns; that they choose features, including styling, concealability, and low cost, which are attractive to the illegal gun market, often at the expense of safety features; and that they continue to supply guns to certain wholesalers, knowing that a disproportionate number of crime-related guns are distributed by those wholesalers. With respect to defendant wholesalers, the complaint alleges that, armed with the same knowledge of the types of guns that are disproportionately involved in crimes and which retailers are disproportionately associated with the sale of such guns, they continue to purchase such guns from the manufacturers and to sell them to those retailers. The complaint concludes that “defendants know that a significant portion of their guns become crime guns, but turn a blind eye so as to increase profits, at the cost of many human lives and much human suffering.”

Various defense motions to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) (7) were consolidated for decision and granted.

As an initial matter, it is important to note that the scope of a court’s inquiry on a motion to dismiss under CPLR 3211 (a) (7) is very narrowly circumscribed. The court must “accept the facts alleged as true * * * and determine simply whether the facts alleged fit within any cognizable legal theory” (Morone v Morone, 50 NY2d 481, 484 [1980] [citations omitted]; see also Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The complaint must be construed “liberally” (CPLR 3026), and the court must accept as true not only “the complaint’s material allegations” but also “whatever can be reasonably inferred therefrom” in favor of the pleader (McGill v Parker, 179 AD2d 98, 105 [1992]; see also Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; see also New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 80 [1949]). In ruling on a motion to dismiss, the court is not authorized to assess the merits of the complaint or any of its factual allegations, but only to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action.

The complaint in this case sets forth claims for abatement of a “public nuisance,” which the Court of Appeals has defined as “conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” (532 Madison *109 Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 292 [2001]; New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 80-81 [1949]; Sullivan v McManus, 19 App Div 167, 168 [1897]; see also Cincinnati v Beretta U.S.A. Corp., 95 Ohio St 3d 416, 768 NE2d 1136 [2002]; City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d 1, 785 NE2d 16 [2002]; Restatement [Second] of Torts § 821B [1] [“A public nuisance is an unreasonable interference with a right common to the general public.”]). Where the real party in interest is the “People,” that is, the populace of a sovereign state, the appropriate agency or official may properly institute an action for abatement “as parens patriae of those individuals who have been or will be injured by the alleged public nuisance” (State of New York v Bridgehampton Road Races Corp., 44 AD2d 725, 726 [1974]; see also New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 82-84 [1949]; see generally Prosser and Keeton, Torts § 90, at 643 [5th ed]; Developments, The Paths of Civil Litigation: The Use of the Public Nuisance Tort Against the Handgun Industry, 113 Harv L Rev 1759 [2000]).

The cause of action for public nuisance developed from the principle that an “infringement of the rights of the crown, or of the general public, was a crime” (Prosser and Keeton, Torts § 86, at 617 [5th ed]). As the Court of Appeals has noted, “[a] public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency” (Copart Indus, v Consolidated Edison Co., 41 NY2d 564 , 568 [1977]).

To state a cause of action for abatement of a public nuisance in New York, the plaintiff must allege conduct by the defendant that creates, maintains, or contributes to an interference with or injury to the public in the exercise of rights common to all (New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 80 [1949]; accord Cincinnati v Beretta U.S.A. Corp., 95 Ohio St 3d 416, 419-420, 768 NE2d 1136 , 1142-1143 [2002], and City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d 1, 9, 785 NE2d 16, 24 [2002] [“A sufficient pleading for a public nuisance cause of action consists of facts alleging a right common to the general public, a transgression of those rights by the defendant and resulting damages” (the “damages” referred to by the court are not money damages, but the injury to the public caused by a public nuisance, which the discussion [337 Ill App 3d at 17-18, 785 NE2d at 31 ] makes clear )]; see also Developments, The Paths of Civil Litigation: The Use of the Public Nuisance Tort Against the Handgun Industry, 113 Harv *110 L Rev 1759 [2000]). In addition, while often not explicitly stated in the decisional law, it is implied that a plaintiff must allege and prove defendant knew or should have known that its conduct caused or contributed to the nuisance (see e.g. State of New York v Shore Realty Corp., 759 F2d 1032, 1051 [2d Cir 1985]; Pharm v Lituchy, 283 NY 130, 132 [1940]; Conhocton Stone Rd. v Buffalo, N.Y. & Erie R.R. Co., 51 NY 573 [1873]; New York Tel. Co. v Mobil Oil Corp., 99 AD2d 185, 188-189 [1984]).

In ruling on the motions to dismiss in this case, Supreme Court cited Penal Law § 400.05 and held that “[t]here can be no dispute that the unlawful use of handguns constitutes a public nuisance.” Defendants did not contest that premise in Supreme Court nor do they contest it here. Thus, the complaint adequately alleges the existence of a public nuisance, the first element in a public nuisance abatement cause of action by the State.

The complaint further alleges that defendants are made aware, through BATF trace requests, of the kinds and numbers of guns that are used in the commission of crimes and that, having been made aware, defendants contribute to the public nuisance of illegal “crime guns” by catering to the market for such guns through their design, manufacturing and distribution practices. These allegations, which, as noted, must be taken as true for purposes of the motion to dismiss, satisfy the knowledge and contribution elements of the public nuisance cause of action. Since the allegations of the complaint satisfy the elements of a cause of action for abatement of a public nuisance, the motion to dismiss should have been denied under well-settled rules applicable to CPLR 3211 motions.

In reaching a contrary conclusion, the majority and the motion court fail to distinguish between a cause of action for abatement of a public nuisance by the State acting in parens patriae and other types of “nuisance” actions, inappropriately assess the merits of the allegations, and, erroneously relying on Hamilton v Beretta U.S.A. Corp. ( 96 NY2d 222 [2001]), apply an inapposite negligence analysis to this case.

A public nuisance abatement cause of action by the State is different, both in character and in the nature of the remedy sought, from a private nuisance claim, which involves a “civil wrong, based on a disturbance of [an individual’s] rights in land” (Prosser and Keeton, Torts § 86, at 618 [5th ed]; see also Cincinnati v Beretta U.S.A. Corp., 95 Ohio St 3d 416, 768 NE2d 1136 [2002]), and which can be remedied by a private right of *111 action for damages by those individuals whose ownership and/or occupancy rights to use and enjoy the land have been infringed (Prosser and Keeton, Torts § 86, at 618; see also State of New York v Shore Realty Corp., 759 F2d 1032, 1050 [2d Cir 1985] [collecting New York cases]). Public nuisance abatement claims by state officials, like those set forth in the instant complaint, must also be differentiated from public nuisance actions for damages brought by private plaintiffs, who, to prevail, must allege and prove that, as a direct result of the nuisance, they suffered particular injury separate and apart from the harm suffered by the public at large as a direct result of the public nuisance (see e.g. 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 292 [2001]; see also, Prosser and Keeton, Torts § 90, at 643).

In contrast to private nuisance actions and public nuisance actions by private plaintiffs, both of which are brought primarily for monetary damages, public nuisance abatement actions are encompassed within a state’s traditional police powers, exercised to protect the health and well-being of the public by requiring the offending defendants to abate the actions that create or contribute to the public nuisance 2 (see e.g. Garcia v Gray, 507 F2d 539, 544. [10th Cir 1974], cert denied 421 US 971 [1975]; see generally, Lawrence O. Gostin et al., The Law and the Public’s Health: A Study of Infectious Disease Law in the United States, 99 Colum L Rev 59; John G. Culhane and Jean Macchiaroli Eggen, Defining a Proper Role for Public Nuisance Law in Municipal Suits Against Gun Sellers: Beyond Rhetoric and Expedience, 52 SC L Rev 287, 293-295). While private nuisance claims and public nuisance claims for damages incorporate traditional negligence notions of foreseeability, proximate cause and fault, state-initiated public nuisance abatement claims are founded on the theory that the State can obtain abatement of a condition that is injurious to the public. As such they are not negligence actions, nor are *112 they governed by negligence concepts (see New York v Shore Realty Corp., supra, 759 F2d at 1050-1051; McFarlane v City of Niagara Falls, 247 NY 340, 345 [1928] [plaintiff “may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance”]; see generally Louise A. Halper, Public Nuisance and Public Plaintiffs: Rediscovering the Common Law [Part I], 16 Envtl L Rep 10292 [1986]). 3

A negligence analysis, with its requirement of the existence of a duty, limited by concomitant considerations of proximate cause, foreseeability, fault, and intent, and tempered by notions of the equitable apportionment of economic liability, is inapposite to an action for abatement of a public nuisance brought by the State in the proper exercise of its police powers. A negligence action for damages begins with an inquiry into whether the defendant owed a duty to the plaintiff, whether the defendant’s conduct was the proximate cause of the plaintiffs injury, and whether injury to the plaintiff was a foreseeable consequence of the defendant’s actions, then progresses to a determination of whether the defendant’s conduct was “tortious” — i.e. negligently or intentionally wrongful — and concludes with an assessment of the amount of money “damages” that is appropriate to compensate the plaintiff for his injuries foreseeably caused by defendant’s tortious conduct. In contrast, a public nuisance abatement action brought by the State as parens patriae begins with a determination that public nuisance — or harm to the public — exists, works backwards *113 to identify the individuals or entities who are causing or contributing to the harm, and concludes with a determination of what actions, if any, those individuals or entities should be required to take to abate the nuisance. Questions of pinpointed duty, foreseeability, remoteness, intent, or the “wrongfulness” of defendant’s conduct are not at issue in public nuisance abatement actions brought by the State. Every individual and entity is responsible to the State and the general population not to cause or contribute to a public nuisance and may be required to take ameliorative actions to diminish his, her, or its contribution to the nuisance, regardless of whether the creation of the nuisance was foreseeable or whether defendant’s conduct in creating or contributing to the nuisance was wrongful (see e.g. New York v Shore Realty Corp., 759 F2d at 1050-1051; United States v Hooker Chems. & Plastics Corp., 722 F Supp 960, 968 [WD NY 1989]; City of Rochester v Premises Located at 10-12 S. Washington St., 180 Misc 2d 17 [Sup Ct, Monroe County 1998]; see also City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d 1, 13, 785 NE2d 16, 27-28 [2002] [citing Restatement (Second) of Torts § 821B]).

For this reason, the rebanee by the majority and by the motion court on Hamilton v Beretta U.S.A. Corp. ( 96 NY2d 222 [2001]) is misplaced. Hamilton was a negligence action for damages brought against gun manufacturers by relatives of persons killed by handguns. The Court of Appeals responded to the Second Circuit’s posttrial certified question, “Whether the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture?” (Id. at 230-231.) The Court employed a traditional negligence analysis of a full trial record and held that those defendants did not owe those plaintiffs the specified duty of care because the connection between the defendants’ conduct and the plaintiffs’ injuries was too attenuated and because the potential damages liability to the defendants was limitless (id. at 233-234). 4

*114 Hamilton did not involve or address the elements of a public nuisance abatement action and is, therefore, inapposite to the present case. The majority imports Hamilton’s discussion of remoteness concepts — clearly at home in a negligence action— into this public nuisance abatement action, arguing that “the harm plaintiff alleges is far too remote from defendants’ otherwise lawful commercial activity to fairly hold defendants accountable for common-law public nuisance” and that defendants do not exercise control over the criminals who use defendants’ lawful products in the commission of their unlawful acts. However, the essence of the Attorney General’s complaint is not that defendants cause criminals to use their weapons illegally, but that defendants’ design, manufacture, marketing, distribution and sales practices cater to the market for crime guns and thereby contribute to the public nuisance. The Attorney General, to prevail, must prove that defendants’ practices cause or contribute to the public nuisance, and a particular defendant’s obligation to abate the nuisance will be in direct proportion to the degree to which it may have caused or contributed to the nuisance. Thus, while “remoteness” concepts may be relevant to the determination of what, if any, abatement actions a defendant might be fairly required to take, they are not determinative of whether a cause of action for public nuisance has been stated (see Cincinnati v Beretta U.S.A. Corp., 95 Ohio St 3d at 419-420, 768 NE2d at 1142-1143; City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d at 17, 785 NE2d at 30 ; City of Boston v Smith & Wesson Corp., 12 Mass L Rptr 225, 2000 WL 1473568 , 2000 Mass Super LEXIS 352 [Super Ct, July 13, 2000]).

The concern expressed in Hamilton , and echoed by the majority here, about the potential for “limitless” damages, is also not applicable to this case. The only relief sought in this case is the abatement of the nuisance; money damages are not demanded.

The majority’s related concern that allowing this case to go forward will “likely open the courthouse doors to a flood of limitless, similar theories of public nuisance * * * against a wide and varied array of other commercial and manufacturing enterprises and activities,” is equally without basis. This is a case brought by the Attorney General, in parens patriae, based upon defendants’ alleged contribution to an acknowledged public nuisance. Denying the motion to dismiss in this case cannot *115 serve to open the courthouse doors to a flood of frivolous public nuisance abatement actions unless there is a realistic fear that out-of-control public officials are lined up, awaiting the chance to bring such actions.

Similarly inapposite are defendants’ negligence-based arguments that there can be no cause of action for public nuisance without an allegation of some wrongful conduct on their part, and that there can be no such allegation since they are engaged in the lawful exercise of a lawful activity — the manufacture and sale of weapons. However, the complaint in this action does not allege that the lawful sale of guns constitutes the public nuisance, but rather, that particular design, manufacturing, marketing and distribution practices of the defendants, which are not regulated by statute, create and/or contribute to the public nuisance of illegal guns (see Cincinnati v Beretta U.S.A. Corp., 95 Ohio St 3d at 420, 768 NE2d at 1143; City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d 1, 13-14, 785 NE2d 16, 27-28 [2002]).

Furthermore, as the majority here concedes, otherwise lawful businesses, some of which are permitted by the State and regulated by statute, can be and have been held to have contributed to public nuisances because of the manner or circumstances in which they operate (see e.g. New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77 [1949]; Clawson v Central Hudson Gas & Elec. Corp., 298 NY 291, 298-299 [1948]; Hoover v Durkee, 212 AD2d 839 [1995]; City of Rochester v Premises Located at 10-12 S. Washington St., 180 Misc 2d 17, 21 [1998]; State of New York v Waterloo Stock Car Raceway, 96 Misc 2d 350 [Sup Ct, Seneca County 1978]; see also State of New York v Shore Realty Corp., 759 F2d 1032, 1051 [2d Cir 1985]; accord City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d at 13-14, 785 NE2d at 27-28 ).

The majority attempts to distinguish New York Trap Rock Corp. v Town of Clarkstown ( 299 NY 77 [1949]) on the grounds that, in this case, there are intervening actors beyond defendants’ control — i.e., criminals — who cause the damage to the public, while in Trap Rock, it was Trap Rock’s blasting activities that directly caused the public injury and that the damage was “spatially and temporally proximate” to Trap Rock’s activities. First, it must be repeated that the Attorney General is not alleging that defendants are or should be held responsible for the injuries caused by actors, i.e., criminals, beyond their control, but that defendants’ particular design, manufacturing, marketing and distribution practices — all of which are clearly *116 within defendants’ control — contribute to the public nuisance of the proliferation of crime guns on the streets of New York. Second, the suggestion that a public nuisance abatement action will lie only when defendant’s conduct occurs close in time and geography to the injury is unsupportable. Such requirement would serve only to insulate decisions made elsewhere from the reach of state public nuisance abatement actions, regardless of the severity of the nuisance or the direct link between such decisions and the public harm. Nothing in Trap Rock or any other case suggests such a restriction on public nuisance abatement actions.

Similarly, the majority identifies no general principles which serve to distinguish City of Rochester v Premises Located at 10-12 S. Washington St. ( 180 Misc 2d 17 [1998]) from this case. Instead, the majority evinces its distaste for raucous nightclubs to explain why the defendant in that case — the nightclub owner — was appropriately subject to a public nuisance cause of action for conduct by former club customers occurring outside the club’s premises. One may probably safely assume that a distaste for the proliferation of illegal crime guns in New York, to which the Attorney General alleges the defendants contribute, is at least equal to the aversion to drunken nightclub customers causing public disturbances. In both cases, the complaint addresses the defendants’ contribution to the public nuisance in question and seeks to abate the nuisance.

The absence of any allegation in the complaint that the guns the defendants manufacture and sell are defective is also irrelevant, as the principles governing products liability actions are inapplicable to public nuisance abatement actions. While New York products liability law permits recovery from a manufacturer of a defective product for injuries caused by the defect (see e.g. Gebo v Black Clawson Co., 92 NY2d 387 [1998]), it does not follow that a manufacturer or distributor of nondefective products is automatically insulated from public nuisance abatement actions. Again, the crux of the complaint is that defendants have contributed to the public nuisance of illegal guns on the street through the manner in which they design, manufacture, market and distribute their products. It is not that the guns are defective and the defect caused a particular injury that deserves recompense. 5

*117 Nor, contrary to defendants’ contention, is the “direct injury” requirement that governs Federal RICO actions (see e.g. Holmes v Securities Inv. Protection Corp., 503 US 258 [1992]; Laborers Local 17 Health & Benefit Fund v Philip Morris, Inc., 191 F3d 229 [2d Cir 1999], cert denied 528 US 1080 [2000]) applicable to the State’s action for abatement of a public nuisance (see e.g. State of New York v Bridgehampton Road Races Corp., 44 AD2d 725 , 726 [1974]; cf. Ganim v Smith & Wesson Corp., 258 Conn 313, 780 A2d 98 [Sup Ct 2001] [dismissing for lack of standing a public nuisance case brought by a city and its mayor for particular expenses and losses incurred by plaintiffs]).

In addition to determining that the allegations of the complaint did not meet the prerequisites for a negligence cause of action, the motion court granted defendants’ motions to dismiss based upon a determination that the complaint failed to adequately allege that the BATF trace requests provide defendants with the “type of information that would enable them to facilitate and profit from the unlawful sale or use of handguns.” The court reasoned that the complaint “does not specifically state that the manufacturer or wholesaler is told that the information sought relates to a gun that was used in a crime,” and noted a statement in a BATF report that “crime gun traces do not necessarily indicate illegal activity by licensed dealers or their employees.”

We may put aside the issue of whether, in an action by a state official for abatement of a public nuisance, it is sufficient to allege and prove that a nuisance exists and that defendant caused or contributed to it in order to obtain an order of abatement or whether, in addition, there must be an allegation that the defendant knew that its conduct caused or contributed to the nuisance; — an issue we need not reach since the Attorney General has alleged that defendants were on notice that the guns they manufactured and sold caused or contributed to the public nuisance. Assuming that notice is a necessary element of a public nuisance abatement action, the motion court’s conclusion that the notice allegations were deficient was erroneous for several reasons.

As an initial matter, the complaint clearly does not need to allege that defendants were provided with information that enabled them to make a profit from the illegal gun nuisance. Whether defendants profited from the conduct alleged is simply *118 not relevant to whether that conduct causes or contributes to the public nuisance of illegal guns. At most, the complaint must allege that defendants had notice that their gun design, manufacturing, marketing and distribution practices were contributing to the nuisance. The complaint fulfills that requirement.

Second, the complaint, quoting the applicable federal statute, alleges that defendants are required by federal law to keep records — by serial number — about each handgun they produce and sell and to respond immediately to BATE gun-information requests that are generated “in the course of* * * bona fide criminal investigation[s]” (see 18 USC § 923 [g] [7] [emphasis supplied]). Thus, according to the complaint, defendants are put on notice by the very fact and nature of the BATE request, that information is being sought about the disposition of a gun that was involved in the commission of a suspected crime.

Third, the complaint’s allegation that “[a] 11 of the defendants were put on notice that they were manufacturing or distributing a significant number of guns that were illegally possessed, transported or disposed of’ by, among other things, BATE trace requests, must be assumed to be true, and is, therefore, sufficient in and of itself to satisfy the notice element of the public nuisance cause of action and preserve the complaint against a motion to dismiss.

Fourth, the motion court erred by assessing the merits of the notice allegations against a statement in the BATE report introduced by defendants as support for their motion to dismiss. Not only was the court required to accept the allegations of the complaint as true for purposes of deciding the dismissal motion, but the statement in the report about possible illegal activity by licensed dealers and their employees has no relevance to the allegations in the complaint.

The majority in this Court goes further by not accepting the notice allegations of the complaint as true and, instead, adopting, for purposes of this case and these motions, findings made upon a full trial record by the Court of Appeals in Hamilton , a wholly separate case brought by very different plaintiffs. Based upon evidence adduced in Hamilton , the majority concludes that the BATE trace requests are inadequate, as a matter of fact and law, to have put defendants on notice of their alleged contribution to the public nuisance of crime guns in New York. As an initial matter, the discussion of BATE trace requests in Hamilton v Beretta U.S.A. Corp. ( 96 NY2d 222 [2001]) appears *119 to address the specifics of trace requests, i.e., the identity of the perpetrator of the gun-related crime under investigation and the victim, and does not address whether defendants are put on notice that certain of the guns they design, manufacture, market and distribute disproportionately end up as crime guns. Even more to the point, the majority’s adoption of factual findings in Hamilton for purposes of assessing defendants’ motion to dismiss in this case constitutes a novel and startling departure from established practice regarding CPLR 3211 (a) (7) motions.

The majority’s final objection to the continuation of the present lawsuit is that courts might become “embroiled” in the specifics of abatement orders — a task the majority clearly wishes to avoid. Such concern, addressed to the fashioning of equitable remedies, something which courts do every day, is misplaced at this stage of the litigation, where our only task is to determine whether the allegations of the complaint, which must be assumed to be true, state a cause of action for abatement of a public nuisance.

Because I believe that the complaint sufficiently alleges facts which, if proven, would establish a cause of action for abatement of a public nuisance, I would reverse and remand the case for further proceedings.

Buckley, P.J., and Lerner, J., concur with Marlow, J.; Rosenberger, J., dissents in a separate opinion.

Order, Supreme Court, New York County, entered August 24, 2001, affirmed, without costs.

. The statute provides, in relevant part, that “Any weapon, instrument, appliance or substance specified in article two hundred sixty-five, when unlawfully possessed, manufactured, transported or disposed of, or * * * utilized in the commission of an offense, is hereby declared a nuisance.”

. City of Philadelphia v Beretta U.S.A. Corp. ( 277 F3d 415 [3d Cir 2002]), Camden County Bd. of Chosen Freeholders v Beretta, U.S.A. Corp. ( 273 F3d 536 [3d Cir 2001]), District of Columbia v Beretta U.S.A. Corp. ( 2002 WL 31811717 [DC Super, Dec. 16, 2002]), City of Gary ex rel. King v Smith & Wesson Corp. ( 2001 WL 333111 [Ind Super Ct, Jan. 11, 2001]), Ileto v Glock, Inc. ( 194 F Supp 2d 1040 [CD Cal 2002]), Penelas v Arms Tech., Inc. (778 So 2d 1042 [Fla Ct App, 3d Dist 2001]), and Ganim v Smith & Wesson Corp. (258 Conn 313, 780 A2d 98 [2001]), cited by the majority, are inapposite to this case as they were all actions brought by individuals or municipal entities or authorities acting as injured plaintiffs for damages, not, as here by the State, acting in parens patriae pursuant to its police powers for abatement of a public nuisance.

. Defendants’ reliance on Restatement (Second) of Torts § 822, Comment a, which analogizes the rules applicable to private nuisance to actions for public nuisance, is similarly misplaced. The Comment is applicable to damages actions for public nuisance brought by private plaintiffs, not, as here, actions brought by the State to abate a public nuisance (see Robert Abrams and Val Washington, The Misunderstood Law of Public Nuisance: A Comparison With Private Nuisance Twenty Years After Boomer, 54 Alb L Rev 359, 367-368 [1990] [noting that, “(u)nfortunately, the comment fails to distinguish or clearly address the public nuisance action as an exercise of the state’s police power, thus implying that public nuisance is always treated as the tort of the same name”]). As one court explained, “nuisance” is generally defined in terms of the offense resulting from the activity rather than the activity itself, and thus, “[u]nlike most other torts, [nuisance] is not centrally concerned with the nature of the conduct causing the damage, but with the nature and relative importance of the interests interfered with or invaded” (Branch v Western Petroleum, Inc., 657 P2d 267, 274 [Utah 1982]; see also City of Rochester v Premises Located at 10-12 S. Washington St., 180 Misc 2d 17, 22 [1998]; State of New York v Fermenta ASC Corp., 160 Misc 2d 187, 195 [1994], appeal dismissed 238 AD2d 400 [1997], lv denied 90 NY2d 810 [1997]).

. It is worth noting that the Court of Appeals did not lock the door against damages actions against gun manufacturers and distributors. In addressing a proposed alternative claim of negligent entrustment as a basis for imposing a duty, the Court in Hamilton stated:

“The negligent entrustment doctrine might well support the extension of a duty to manufacturers to avoid selling to certain distributors in circumstances where the manufacturer knows or has reason to know those distributors are engaging in substantial sales of guns into the guntrafficking market on a consistent *114 basis. Here, however, plaintiffs did not present such evidence.” (96 NY2d at 237.)

. Contrary to defendants’ assertions, the claims in State of New York v Fermenta ASC Corp. ( 160 Misc 2d 187 [Sup Ct, Suffolk County 1994], appeal dismissed 238 AD2d 400 [1997]) and Suffolk County Water Auth. v Union *117 Carbide Corp. (NYLJ, May 2, 1991, at 28, col 1) were not based on defects in the defendants’ products. The issue in both cases was whether a nuisance existed, not whether the products were defective.