5601d No. 25
   Anthony Roberts et al.,
   Respondents,
   v.
   General Electric Company,
   Appellant, et al.,
   Defendant, UE&C Catalytic, a Division of Raytheon Constructors Inc.,
   Third-Party Appellant, et al., Third-Party Defendant.
     _________________________________________________________________

   2002 NY Int. 29

   March 19, 2002

   This memorandum is uncorrected and subject to revision before
   publication in the New York Reports.

   Peter S. Marlette, for appellants.
   Lawrence D. Lissauer, for respondents.
     _________________________________________________________________
     _________________________________________________________________

   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