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The Argument That The Use Of A Paintball Gun By A Person Under 16 Years Old Was A Violation Of Penal Law § Was Not Raised By The Plaintiff In His Affirmation In Opposition.

July 1, 2014 • Posted By Joseph A. French & Emma Christman • Complex Litigation

The court has dismissed the defendant’s motion for summary judgment to dismiss the complaint in part because DiSilvestro v. Samler holds that a violation of Penal Law § 265.10(5) constitutes negligence per se.   This case states that a paintball gun is an air gun as defined by Penal Law § 265.05 and therefore it is illegal for a person under the age of 16 to possess a paintball gun. DiSilvestro v. Samler, 32 A.D.3d 987, 988-89, 821 N.Y.S.2d 632, 634 (2006).

Penal Law § 265.05 provides that “It shall be unlawful for any person under the age of sixteen to possess any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air, or any gun or any instrument or weapon in or upon which any loaded or blank cartridges may be used.” The court of Danielle A. ex rel. Darryl A. v. Christopher P., held that a paintball gun which uses a carbon dioxide cartridge is an “air-gun” as defined in the New York Penal Law § 265.05 and under the New York City Administrative Code § 10–131(b)(1). Danielle A. ex rel. Darryl A. v. Christopher P., 3 Misc. 3d 357, 358, 776 N.Y.S.2d 446, 447 (N.Y. Sup. Ct. 2004).  This principle was restated in Herdzik v. Chojnacki,stating that“[i]t is undisputed that a paintball gun uses “spring or air” as the propelling force within the meaning of Penal Law § 265.05.” Herdzik v. Chojnacki, 68 A.D.3d 1639, 1641, 892 N.Y.S.2d 724, 726 (2009).  In relevant part, Penal Law § 265.10[5] provides that “[a]ny person who disposes of any of the weapons ... specified in section 265.05 to any other person under the age of sixteen years is guilty of a class A misdemeanor.” However, as stated in New York City Administrative Code § 10-131(b) and confirmed in Danielle A. ex rel. Darryl A. v. Christopher P., 3 Misc. 3d 357, 359, 776 N.Y.S.2d 446, 448 (Sup. Ct. 2004), there is an exception and it is not a violation if used within a “licensed amusement facility.”

If Ring Homestead Camp is a licensed amusement facility, then it did not violate the law.  Furthermore, the court’s contention, that because the activity is prescribed by law the doctrine of express assumption of the risk should not bar recovery, would no longer be applicable.