Roberts v. General Electric Company

97 N.Y.2d 737 (2002)

768 N.E.2d 1127

742 N.Y.S.2d 188

ANTHONY ROBERTS et al., Respondents, v. GENERAL ELECTRIC COMPANY, Defendant and Third-Party Plaintiff-Appellant, et al., Defendant. UE&C CATALYTIC, a Division of RAYTHEON CONSTRUCTORS, INC., Third-Party Defendant-Appellant, et al., Third-Party Defendant.

Court of Appeals of the State of New York.

Decided March 19, 2002.

*738 Damon & Morey LLP, Buffalo (Peter S. Marlette, Michelle A. Crew and Amy Archer Flaherty of counsel), for defendant and third-party plaintiff-appellant and third-party defendant-appellant.

Finkelstein & Partners, LLP, Newburgh (Lawrence D. Lissauer of counsel), for respondents.

Before: Judges SMITH, LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur in memorandum; Chief Judge KAYE taking no part.

MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the Labor Law § 240 (1) cause of action dismissed.

This is an action brought pursuant to Labor Law § 240 (1). Plaintiff, an employee of an asbestos removal company, was injured when a piece of asbestos, which had been cut and deliberately dropped from a chemical tank approximately 12 feet above ground, fell on him. Plaintiff and his wife brought this action against General Electric Company, the owner of the premises, alleging, among other things, absolute liability under section 240 (1) of the Labor Law. Supreme Court granted partial summary judgment to plaintiffs as to liability on the section 240 (1) cause of action. The Appellate Division affirmed, with two Justices dissenting. Defendant now appeals as of right to this Court pursuant to CPLR 5601 (d) from the ensuing Supreme Court judgment awarding damages to bring up for review the prior Appellate Division order.

Here, the asbestos "that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell, and thus Labor Law § 240 (1) does not apply. * * * This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). Accordingly, there was no basis for liability pursuant to Labor Law § 240 (1).

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.