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In a case of first impression, a Staten Island Supreme Court judge has ruled that a toy gun that shoots paintballs is an “air gun” under state and city laws, and held a teen and his parents liable for injuries to another child. In Adone v. Paletto, 11928/03, Justice Joseph J. Maltese ruled in summary judgment in favor of plaintiffs, finding Christopher Paletto, 13, and his parents liable for injuries to the eye of Danielle Adone, who was hit by a paintball while standing in the Paletto’s driveway. The judge left it up to a jury to determine damages. In June, 2003, Christopher, while perched on the roof of his garage like a would-be sniper, fired away at Danielle, 12, who stood in his driveway. He fired twice without hitting her, then hit her in the left eye with the third shot. The girl suffered retinal damage and lost partial sight in the eye. Christopher said did not mean to hurt her — “he was ‘just messing around,” shooting some pellets to pass the time because he was “bored,” the decision said. His parents knew about the toy gun, according to the opinion. They watched Christopher shoot it regularly in their backyard, the judge said, and they even drove him to a supply store to purchase carbon dioxide (CO2) cartridges and paintballs. But the parents warned him to be careful, and “not to shoot when anybody is around.” Under New York Penal Law � 265.05, “it is ‘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.” New York City Administrative Code � 10-131(b) also prohibits possession of such guns unless “used within a licensed amusement facility.” The Paletto driveway did not qualify as such a facility, the judge said. The court, pushing aside constraints of “hypertechnical interpretations of a criminal statute,” found that Christopher’s gun, powered by carbon dioxide cartridges, fell into the “plain, natural language” of the penal code. Since Christopher was under 16 and carried an “air-gun,” he had violated state and city laws. The ruling, which was issued Feb. 13, went on to find Christopher’s parents accountable for the girl’s injury. “[T]he parents,” said Maltese, “not only were responsible for their child … but brought him to the store [to] purchase 500 paintballs and on occasion saw him shooting the gun.” The judge brushed aside the Paletto defense: that the accident was “unforeseeable.” “Such a contention is not tenable in that if one fires a gun several times at an individual,” the judge said, “it is clearly foreseeable that one of those shots will hit that person.” Maltese found the Paletto parents liable “under the doctrine of negligent entrustment,” and said the case will proceed to trial “on the issue of injury to the plaintiff.” John Bosco of Bosco, Bisignano and Mascolo on Staten Island represented Danielle and her father, Darrly Adone. Harvey R. Brown of the Law Offices of Michael F.X. Manning in Manhattan represented the Palettos.

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