Summary
In Roberts v General Elec. Co. (97 NY2d 737, 738 [2002]), the Court of Appeals held that section 240 (1) did not apply in a case where a worker was injured by a piece of asbestos, which had been cut and deliberately dropped from a chemical tank 12 feet above the ground.
Summary of this case from Garcia v. SMJ 210 W. 18 LLCOpinion
March 19, 2002.
APPEAL from an amended judgment of the Supreme Court (George B. Ceresia, Jr., J.), entered June 1, 2001 in Rensselaer County, which awarded plaintiff damages in the sum of $597,394.85. The appeal brings up for review a prior nonfinal order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered April 5, 2001, which, with two Justices dissenting in part, affirmed an order of the Supreme Court (George B. Ceresia, Jr., J.), entered in Rensselaer County, granting plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1); granting defendant General Electric Company's motion for summary judgment dismissing plaintiffs' complaint as to the Labor Law §§ 200 and 241(6) causes of action and denying its motion as to plaintiffs' derivative causes of action; denying General Electric's motion for a judgment of indemnification as against the project administrator but granting such motion as against the employer; denying General Electric's motion to dismiss the project administrator's answer; denying the employer's cross motion to dismiss the project administrator's cross claim; and denying the employer's cross motion to the extent it sought to dismiss plaintiffs' second cause of action, but granting it to the extent it sought to dismiss plaintiffs' third cause of action.
Roberts v. General Elec. Co., 282 A.D.2d 791, reversed.
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.
Finkeistein Partners, LLP, Newburgh (Lawrence D. Lissauer of counsel), for respondents.
Judges SMITH, LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur in memorandum.
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 N.Y.2d 259, 268). Accordingly, there was no basis for liability pursuant to Labor Law § 240(1).
Chief Judge KAYE taking no part.
Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.