Orellana v 5541-1274 Fifth Ave. Manhattan LLC 2026 NY Slip Op 30784(U) March 9, 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.003.LBLX036_TO.html[03/13/2026 3:45:54 PM] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
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. 009 -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 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 1 of 4 Motion No. 009
1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
The following e-filed documents, listed by NYSCEF document number (Motion 009) 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 296, 302, 307, 313, 342, 343, 344, 345, 346, 347, 351, 352, 356, 361, 367, 372, 377, 382, 383, 388 were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, the motion is denied.
Background
This motion arises out of a Labor Law case involving an incident at a construction site
located on a premises owned by defendants Akelius Real Estate Management LLC (“Akelius”)
5541-1274 Fifth Avenue Manhattan LLC (“Fifth” or collectively with Akelius “Owners”). The
general contractor for the project was defendant Reidy Contracting Group, LLC (“Reidy” or
“GC”). Plaintiff was a bricklayer, employed by defendant Touchstone Contracting, Inc.
(“Touchstone” or “Employer”). He was working on a scaffold on the day in question when an
unsecured cinderblock or brick fell and injured him. Plaintiff was positioned beneath an elevator
bulkhead above the rooftop. A plastic tarp had been placed on top of the bulkhead in order to
protect the elevator from the weather, and it is alleged that the tarp was secured with
cinderblocks and that on the day in question, a gust of wind blew one of the cinderblocks off the
tarp onto Plaintiff.
Procedural Background
Plaintiff commenced this underlying proceeding in March of 2020, pleading claims
against Owners and GC. Both defendants answered, and the GC filed a third-party complaint in
September of 2020, pleading claims for indemnification and contribution against two sub-
contractors on the site: H&L Ironworks Corp. (“H&L” or “Masonry Subcontractor”) who was
hired by Reidy and themselves sub-contracted Employer, and LCD Elevator, Inc. (“LCD” or
“Elevator Subcontractor”), who was hired directly by Owners. Both H&L and LCD have
152497/2020 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 2 of 4 Motion No. 009
2 of 4 [* 2] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
answered the third-party complaint. Plaintiff has filed several verified bills of particulars in this
case.
In June of 2022, Plaintiff commenced a separate action against Akelius, which has since
been consolidated with this action. In May of 2023, the GC filed a motion for summary judgment
seeking dismissal of the labor law claims against them and contractual indemnity from H&L. A
decision from this Court granted dismissal of the common law negligence, Labor Law § 200, and
Labor Law 241(6) claims against the GC (the “December Order”). In dismissing the Labor Law
241(6) claim, the Court reasoned that it was undisputed that work was not being done overhead
at the time of the accident and therefore “the movant has established that section 23-1/7(a) [of
the Industrial Code] is inapplicable to the instant case.” The December Order also noted that the
GC had failed to meet their burden on establishing contractual indemnity because there were
questions of fact going to whether LCD was responsible for the accident in question. The GC
appealed the December Order, which was affirmed by the First Department. Plaintiff filed the
Note of Issue in January of 2025.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 [2016].
152497/2020 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 3 of 4 Motion No. 009
3 of 4 [* 3] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
In this motion, LCD moves for summary judgment in their favor, dismissing all claims
and cross-claims asserted against them. They argue that because no-one knows for sure what
caused the cinderblock that struck Plaintiff to fall, all claims against them should be dismissed.
The motion is opposed by the Owners and Touchstone and partially opposed by Reidy. Plaintiff
has not opposed the motion.
In essence, LCD is arguing that because there are material questions of fact, they should
be awarded summary judgment. Crucially, LCD has not submitted evidence proving
conclusively that the cinderblock was not being used to secure a tarp covering their elevator
work. Instead, they have pointed to the areas of confusion and conflicting testimony regarding
the source of the cinderblock in the record and provided affidavits from their employees stating
that they had not placed a cinderblock on the plastic sheeting in question. While this would
suffice to oppose a motion for summary judgment (and indeed, a motion for summary judgment
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Orellana v 5541-1274 Fifth Ave. Manhattan LLC 2026 NY Slip Op 30784(U) March 9, 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.003.LBLX036_TO.html[03/13/2026 3:45:54 PM] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
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. 009 -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 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 1 of 4 Motion No. 009
1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
The following e-filed documents, listed by NYSCEF document number (Motion 009) 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 296, 302, 307, 313, 342, 343, 344, 345, 346, 347, 351, 352, 356, 361, 367, 372, 377, 382, 383, 388 were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, the motion is denied.
Background
This motion arises out of a Labor Law case involving an incident at a construction site
located on a premises owned by defendants Akelius Real Estate Management LLC (“Akelius”)
5541-1274 Fifth Avenue Manhattan LLC (“Fifth” or collectively with Akelius “Owners”). The
general contractor for the project was defendant Reidy Contracting Group, LLC (“Reidy” or
“GC”). Plaintiff was a bricklayer, employed by defendant Touchstone Contracting, Inc.
(“Touchstone” or “Employer”). He was working on a scaffold on the day in question when an
unsecured cinderblock or brick fell and injured him. Plaintiff was positioned beneath an elevator
bulkhead above the rooftop. A plastic tarp had been placed on top of the bulkhead in order to
protect the elevator from the weather, and it is alleged that the tarp was secured with
cinderblocks and that on the day in question, a gust of wind blew one of the cinderblocks off the
tarp onto Plaintiff.
Procedural Background
Plaintiff commenced this underlying proceeding in March of 2020, pleading claims
against Owners and GC. Both defendants answered, and the GC filed a third-party complaint in
September of 2020, pleading claims for indemnification and contribution against two sub-
contractors on the site: H&L Ironworks Corp. (“H&L” or “Masonry Subcontractor”) who was
hired by Reidy and themselves sub-contracted Employer, and LCD Elevator, Inc. (“LCD” or
“Elevator Subcontractor”), who was hired directly by Owners. Both H&L and LCD have
152497/2020 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 2 of 4 Motion No. 009
2 of 4 [* 2] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
answered the third-party complaint. Plaintiff has filed several verified bills of particulars in this
case.
In June of 2022, Plaintiff commenced a separate action against Akelius, which has since
been consolidated with this action. In May of 2023, the GC filed a motion for summary judgment
seeking dismissal of the labor law claims against them and contractual indemnity from H&L. A
decision from this Court granted dismissal of the common law negligence, Labor Law § 200, and
Labor Law 241(6) claims against the GC (the “December Order”). In dismissing the Labor Law
241(6) claim, the Court reasoned that it was undisputed that work was not being done overhead
at the time of the accident and therefore “the movant has established that section 23-1/7(a) [of
the Industrial Code] is inapplicable to the instant case.” The December Order also noted that the
GC had failed to meet their burden on establishing contractual indemnity because there were
questions of fact going to whether LCD was responsible for the accident in question. The GC
appealed the December Order, which was affirmed by the First Department. Plaintiff filed the
Note of Issue in January of 2025.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 [2016].
152497/2020 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 3 of 4 Motion No. 009
3 of 4 [* 3] FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020 NYSCEF DOC. NO. 396 RECEIVED NYSCEF: 03/09/2026
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
In this motion, LCD moves for summary judgment in their favor, dismissing all claims
and cross-claims asserted against them. They argue that because no-one knows for sure what
caused the cinderblock that struck Plaintiff to fall, all claims against them should be dismissed.
The motion is opposed by the Owners and Touchstone and partially opposed by Reidy. Plaintiff
has not opposed the motion.
In essence, LCD is arguing that because there are material questions of fact, they should
be awarded summary judgment. Crucially, LCD has not submitted evidence proving
conclusively that the cinderblock was not being used to secure a tarp covering their elevator
work. Instead, they have pointed to the areas of confusion and conflicting testimony regarding
the source of the cinderblock in the record and provided affidavits from their employees stating
that they had not placed a cinderblock on the plastic sheeting in question. While this would
suffice to oppose a motion for summary judgment (and indeed, a motion for summary judgment
in this case has already been denied due specifically to questions of fact going to LCD’s potential
role in the accident), this does not establish a prima facie entitlement to summary judgment for
LCD. Accordingly, it is hereby
ADJUDGED that the motion is denied.
3/9/2026 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □ GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
152497/2020 ORELLANA, MILTON ALFREDO vs. 5541-1274 FIFTH AVENUE Page 4 of 4 Motion No. 009
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