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CHURCH v. CALLANAN INDUS.

99 N.Y.2d 104 (2002)

782 N.E.2d 50

752 N.Y.S.2d 254

NED S. CHURCH, an Infant, by WENDY SMITH, His Guardian ad Litem, et al., Appellants, v. CALLANAN INDUSTRIES, INC., et al., Defendants, and SAN JUAN CONSTRUCTION AND SALES COMPANY, Respondent. (And a Third-Party Action.)

Court of Appeals of the State of New York.

Decided November 19, 2002.

Attorney(s) appearing for the Case

Michael J. Hutter, Albany, and Thorn Gershon Tymann and Bonanni, LLP, for appellants.

D'Agostino, Krackeler, Baynes & Maguire, P.C., Menands (Arete K. Sprio of counsel), for respondent.

William D. Fireman, P.C., New York City (William D. Fireman of counsel), for New York State Trial Lawyers Association, amicus curiae.

Nolan & Heller, LLP, Albany (Terence J. Burke and Frederick W. Clark III of counsel), for Empire State Subcontractors Association, amicus curiae.

Couch White, LLP, Albany (James J. Barriere and Stephen M. Buhr of counsel), for Associated General Contractors of America, New York State Chapter, Inc. and another, amici curiae.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

LEVINE, J.

Plaintiff Ned Church, age nine, received catastrophic spinal injuries December 26, 1992, when the driver of a Volkswagen Jetta in which he was a rear seat occupant fell asleep at the wheel. The vehicle veered off the southbound traffic portion of the New York State Thruway near milepost marker 132.7, careened down a nontraversable embankment and crashed in a V-shaped ditch...

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