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FITZSIMMONS v. STATE

34 N.Y.2d 739 (1974)

Robert Fitzsimmons, Jr., an Infant, by Robert Fitzsimmons, Sr., His Parent, et al., Respondents, v. State of New York at Stonybrook et al., Appellants. (Claim No. 52207.)

Court of Appeals of the State of New York.

Decided May 9, 1974.

Attorney(s) appearing for the Case

Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel) for appellant.

John I. Coster and Martin Szold for respondents.

Concur: Judges GABRIELLI, JONES, WACHTLER and RABIN. Judge STEVENS dissents and votes to reverse in an opinion in which Chief Judge BREITEL and Judge JASEN concur.

Order affirmed, with costs, on the memorandum at the Appellate Division.

STEVENS, J. (dissenting).

The accident herein occurred December 21, 1969 at about 7:15 P.M. Plaintiff, age 17 at the time, his brother age 19 and two friends, had come to the campus to play basketball. The testimony was that prior to the date of the accident, beginning in September, 1969, plaintiff had visited the campus eight or nine times to play basketball in the gymnasium...

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