Cite as Forni v. Ferguson, 648 N.Y.S.2d 73 (A.D. 1 Dept. 1996)

           John FORNI, et al., Plaintiffs-Appellants,

                               v.

                  Colin FERGUSON, Defendant,and
    Sturm Ruger & Co., Inc., et al., Defendants-Respondents.

      Supreme Court, Appellate Division, First Department.

                          Oct. 1, 1996.

    Alan M. Goldberg, New York City, for Plaintiffs-Appellants.

     James P. Dorr, Daniel P. Jaffe, Edward P. Dunphy, William A.
Rome, New York City, for Defendants-Respondents.

     Before SULLIVAN, J.P., and ELLERIN, NARDELLI and ANDRIAS,JJ.

                      MEMORANDUM DECISION.

     Order, Supreme Court, New York County (Alice Schlesinger J.),
entered August 10, 1995, which granted the motions of defendants
Sturm, Ruger & Co, Inc., Olin Corporation, and Ram-Line, Inc., to
dismiss the complaint for failure to state a cause of action, and
denied plaintiffs cross-motion to amend the complaint, unanimously
affirmed, without costs.

     While there have been and will be countless debates over the
issue of whether the risks of firearms outweigh their benefits, it
is for Legislature to decide whether manufacture, sale and
possession of firearms is legal.  To date, the manufacture, sale
and ownership of the semiautomatic handgun, ammunition and magazine
at issue in this case have been legally permitted.  Plaintiffs
herein have failed to satisfactorily allege the existence of a
legally cognizable defect in the condition of the pistol,
ammunition and magazine (Robinson v. Reed-Prentice Div. of Package
Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717,403 N.E.2d 440).  As a
matter of law, a product's defect is related to its condition, not
its intrinsic function (id, at 479, 426 N.Y.S.2d 717, 403 N.E.2d
440).  As stated by the Court in DeRosa v. Remington Arms Co., 509
F.Supp. 762, 769:

        Sadly it must be acknowledged that: (m)any products,
     however well-built or well-designed may cause injury or death. 
     Guns may kill; knives may maim; liquor may cause alcoholism;
     but the mere fact of injury does not entitle the (person
     injured) to recover ... there must be something wrong with the
     product, and if nothing is wrong there will be no liability. 

     The motion court also properly denied plaintiffs' motion to-
add a cause of action based upon negligence.  Plaintiffs did not,
nor could they, show that defendants-manufacturers owed plaintiffs
a duty o f care, that the manufacturers breached their duty of care
and that the manufacturers' breach of their duty of car was the
proximate cause of plaintiffs' injuries (Purdy v. Public Adm'r.  of
County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d
4; see, also, Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393,
358 N.E.2d 1019).  New York does not impose a duty upon a
manufacturer to refrain from the lawful distribution of a non-
defective product (see Elsroth v. Johnson & Johnson, 700 F.Supp.
151, 156).  The manufacturers in this case certainly had no control
over the criminal conduct of a third party.

     We have considered plaintiffs' other claims and find them to
be without merit.