holding that a “party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances”
How later courts described this case
- holding that a “party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances”
Written by the judges who cited it.
The opinion
Orellana v 5541-1274 Fifth Ave. Manhattan LLC
2026 NY Slip Op 30818(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.002.LBLX036_TO.html[03/16/2026 3:45:38 PM]
FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020
NYSCEF DOC. NO. 395 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. 007
-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,
-against-
LCD ELEVATOR, INC., TOUCHSTONE CONTRACTING INC.
Defendant.
--------------------------------------------------------------------------------X
H&L IRONWORKS CORP. Third Third-Party
Index No. 595319/2023
Plaintiff,
-against-
TOUCHSTONE CONTRACTING INC.
Defendant.
--------------------------------------------------------------------------------X
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Motion No. 007
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FILED: NEW YORK COUNTY CLERK 03/10/2026 11:08 AM INDEX NO. 152497/2020
NYSCEF DOC. NO. 395 RECEIVED NYSCEF: 03/09/2026
The following e-filed documents, listed by NYSCEF document number (Motion 007) 198, 199, 200, 201,
202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 294, 300, 305,
309, 317, 318, 319, 326, 327, 328, 329, 338, 339, 340, 341, 354, 359, 365, 370, 375, 379, 380, 386
were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, the motion is granted in part.
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
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Motion No. 007
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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 the accident in question was “cause or contributed by” H&L’s
work as they were not present on the roof at the time of the accident. 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].
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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, Owners move for summary judgment dismissing the complaint and any
cross-claims asserted against them, and for conditional summary judgment on their claims for
contractual and common law indemnity asserted against Reidy and LCD. The motion is opposed
by LCD and Reidy as it relates to the indemnity and cross-claims portion. Plaintiff does not
oppose the portion of the motion regarding his claims against Owners. Those claims will
therefore be dismissed, and the issue becomes whether Owners are entitled to summary judgment
dismiss the cross-claims asserted against them and granting their claims for conditional summary
judgment. For the reasons that follow, the motion is otherwise denied as premature.
Owners Are Not Entitled to Conditional Summary Judgment on the Contractual Indemnification
or Common Law Indemnification Claims at This Time
Turning first to the matter of contractual indemnification, the general rule is that a party
is entitled to contractual indemnification only when “the contractual language evinces an
‘unmistakable intent’ to indemnify.” Great Northern Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d
412, 417 [2006]; see also Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777
[1987] (holding that a “party is entitled to full contractual indemnification provided that the
intention to indemnify can be clearly implied from the language and purposes of the entire
agreement and the surrounding facts and circumstances”).
The terms of the indemnification provision in Owners’ agreement with Reidy states that
Reidy will indemnify the Owners for injuries “caused by the Contractor’s or its Subcontractors’
Work.” Owners argue that the injury in question must have been caused by Reidy or a
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subcontractor, therefore they are entitled to indemnification from Reidy. In opposition to this
portion of the motion, Reidy argues that the injury was not caused by them or any of their
subcontractors, and therefore the contractual indemnification provision is not triggered. In the
December Order, this Court has already held that Reidy was not negligent under the common
law, that Reidy did not violate Labor Law § 200, and that LCD was not retained by Reidy’s
subcontractor H&L. Owners argue that either Reidy and/or one of their subcontractors, or LCD,
must have been the negligent cause of Plaintiff’s injury. Therefore, they argue, Owners are
entitled to conditional summary judgment against both entities.
Reidy is correct in stating that because LCD was not hired by them, if the accident was
caused by LCD’s negligence then the contractual indemnification provision with Owners would
not be triggered. But this Court has already held that there are material issues of fact going to
whether the accident was caused by H&L, who was hired by Reidy. Therefore, it is possible that
ultimately Reidy’s subcontractor will be deemed to be the cause of the accident, in which case
the contractual indemnification provision would be triggered.
The indemnification language of the agreement between Owners and LCD states that
LCD will indemnify the Owners for injuries “caused by the negligent acts or omissions” of LCD
or a subcontractor. The Court notes that in the December Order, it has previously held that there
are issues of fact going to whether LCD was responsible for the injury. It also held that due to the
questions of fact in this case, conditional indemnity was not appropriate. The same analysis
applies here. Because there are material questions of fact going to who was responsible for the
injury, and therefore which contractual indemnification provision would be triggered, the Court
cannot grant conditional contractual indemnity at this time. As common law indemnification
likewise requires a finding of responsibility for the work giving rise to the injury, it is premature
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to grant summary judgment on the common law indemnification claim as well. See, e.g.,
Rodriguez v. Metropolitan Life Ins. Co., 234 A.D.2d 156, 156 [1st Dept. 1996]. Accordingly, it is
hereby
ADJUDGED that the motion is granted in part; and it is further
ORDERED that plaintiff Milton Alfredo Barrera Orellana’s Labor Law § 200 and §
241(6) claims against defendants 5541-1274 Fifth Avenue Manhattan LLC and Akelius Real
Estate Management LLC are hereby dismissed; and it is further
ADJUDGED that the motion for summary judgment on the contractual and common law
indemnification claims is denied as premature.
3/9/2026
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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