Orellana v. 5541-1274 Fifth Ave. Manhattan LLC

2026 NY Slip Op 30817(U)

• Court: New York Supreme Court, New York County
• Decided: March 5, 2026
• Docket: Index No. 152497/2020
• Status: Unpublished
• Author: Lyle E. Frank

Opinion

Orellana v 5541-1274 Fifth Ave. Manhattan LLC 2026 NY Slip Op 30817(U) March 5, 2026 Supreme Court, New York County Docket Number: Index No. 152497/2020 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1524972020.NEW_YORK.001.LBLX036_TO.html[03/16/2026 3:45:38 PM] FILED: NEW YORK COUNTY CLERK 03/09/2026 10:56 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 03/05/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 152497/2020 MILTON ALFREDO BARRERA ORELLANA, MOTION DATE 03/14/2025 Plaintiff, MOTION SEQ. NO. 008 -v- 5541-1274 FIFTH AVENUE MANHATTAN LLC,REIDY CONTRACTING GROUP LLC,H&L IRONWORKS CORP., DECISION + ORDER ON LCD ELEVATOR, INC.,AKELIUS REAL ESTATE, MOTION Defendant. ---------------------------------------------------------------------------------X

REIDY CONTRACTING GROUP LLC Third-Party Index No. 595725/2020 Plaintiff,

-against-

H&L IRONWORKS CORP., LCD ELEVATOR INC.

Defendant. --------------------------------------------------------------------------------X

5541-1274 FIFTH AVENUE MANHATTAN LLC Second Third-Party Index No. 595899/2020 Plaintiff,

LCD ELEVATOR, INC., TOUCHSTONE CONTRACTING INC.

Defendant. --------------------------------------------------------------------------------X

H&L IRONWORKS CORP. Third Third-Party Index No. 595319/2023 Plaintiff,

TOUCHSTONE CONTRACTING INC.

Defendant. --------------------------------------------------------------------------------X

152497/2020 Motion No. 008 Page 1 of 4

1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 03/09/2026 10:56 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 03/05/2026

The following e-filed documents, listed by NYSCEF document number (Motion 008) 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 297, 303, 306, 310, 314, 320, 321, 322, 357, 360, 366, 371, 376, 384, 389 were read on this motion to/for JUDGMENT - SUMMARY .

This action arises out of injuries sustained by plaintiff while employed at a construction

site. Second/third third-party defendant, Touchstone Contracting Inc. (“Touchstone”), now

moves for summary judgment seeking dismissal of all claims against them, any cross claims for

common law indemnification and contribution on the ground that the causes of action are barred

by Workers Compensation Law Section 11; dismissal of the second third-party complaint for

contractual indemnification asserted by defendant second third-party plaintiff 5541-1274 Fifth

Avenue Manhattan LLC fail on the grounds that there is no contractual relationship between it

and Touchstone; and dismissal of the third third-party complaint dismissing all causes of action

asserted by H & L Ironworks as against Touchstone, and all cross claims, which sound in

contractual indemnification and breach of contract on the grounds that there is no evidence of

any negligence on the part of Touchstone that would trigger contractual indemnification, and that

there is no basis for the claim that Touchstone did not procure insurance.

Defendant/third-party defendant/second third-party defendant L.C.D. ELEVATOR

REPAIR, INC. i/s/h/a LCD ELEVATOR, INC. (hereinafter “LCD”) submits a partial opposition

to the instant motion1, the motion is otherwise unopposed. For the reasons set forth below,

Touchstone’s motion for summary judgment is granted.

1 Defendants/third-party plaintiffs 5541-1274 Fifth Avenue Manhattan LLC and Akelius Real Estate Management (together, “Akelius”) affirmation in opposition is filed under the motion sequence number associated with Touchstone’s motion (Motion Seq. No. 8); the opposition does not address Touchstone’s motion for summary judgment; it opposes plaintiff’s motion for summary judgment (Motion Sequence No. 10); and LCD’s motion for summary judgment (Motion Sequence No. 9). 152497/2020 Motion No. 008 Page 2 of 4

2 of 4 [* 2] FILED: NEW YORK COUNTY CLERK 03/09/2026 10:56 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 03/05/2026

Summary Judgment Standard

It is a well-established principle that the "function of summary judgment is issue finding,

not issue determination." Assaf v Ropog Cab Corp., 153 AD2d 520, 544 [1st Dept 1989]. As such,

the proponent of a motion for summary judgment must tender sufficient evidence to show the

absence of any material issue of fact and the right to entitlement to judgment as a matter of law.

Alvarez v Prospect Hospital, 68 NY2d 320, 501 [1986]; Winegrad v New York University Medical

Center, 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a drastic

remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion

for summary judgment is entitled to all favorable inferences that can be drawn from the evidence

submitted.

Discussion

Touchstone’s motion is substantively unopposed. Touchstone has established the claims

asserted against it are barred by the Worker’s Compensation Law in that plaintiff was employed

by Touchstone and did not sustain a grave injury. Further, Touchstone has established and that it

did in fact procure insurance and was not negligent, thereby defeating the claims asserted in the

third party complaints.

The basis of LCD’s opposition was limited to the recitation of facts, which for the

purposes of this motion need not be addressed nor are dispositive for the purposes of establishing

Touchstone’s prima facie case of dismissal of the third-party complaints. Accordingly, it is

hereby

ORDERED that all claims and cross-claims asserted against Touchstone Contracting Inc.

are dismissed with prejudice, and the matter is severed and continues as against all other

defendants; and it is further

152497/2020 Motion No. 008 Page 3 of 4

3 of 4 [* 3] FILED: NEW YORK COUNTY CLERK 03/09/2026 10:56 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 03/05/2026

ORDERED that the Clerk is directed to amend the caption reflecting the dismissal.

3/5/2026 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

152497/2020 Motion No. 008 Page 4 of 4

4 of 4 [* 4]