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Charges Filed in Fatal Pit Collapse

Monday, August 10, 2015

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Two construction supervisors and their employers have been charged in connection with a trench collapse that killed a 22-year-old worker this spring at a retail project site in New York.

Authorities allege that Wilmer Cueva, 50, and Alfonso Prestia, 54, as well as Sky Materials Corp. and Harco Construction LLC, recklessly caused the death of Carlos Moncayo, a Sky employee, by failing to heed and address repeated warnings about unsafe work conditions at the site.

trench case
NYPD, courtesy of Manhattan District Attorney's Office

A worker was killed when an unsecured trench collapsed in New York City on April 6.

Moncayo was killed April 6 when an unsecured trench he was working in collapsed and fatally crushed him, according to Manhattan District Attorney Cyrus R. Vance Jr. and New York City Department of Investigation Commissioner Mark G. Peters.

Cueva served as Sky’s foreman and Prestia was a senior superintendent with Harco.

The men and companies face charges of Manslaughter in the Second Degree, Criminally Negligent Homicide, and Reckless Endangerment in the Second Degree, prosecutors announced Wednesday (Aug. 5).

The defendants pleaded not guilty in State Supreme Court in Manhattan Wednesday afternoon.

Recently, the owner and construction project manager of a California company were sentenced to two years in jail after a 12-foot-deep retaining wall caved in and crushed a worker in 2012.

Warnings Ignored

According to court documents in the New York case, between December 2014 and March 2015, Sky, an excavation subcontractor, and Harco, a general contractor, managed and oversaw construction work the site of a future retail store in the Meatpacking District.

During that period, Cueva and Prestia were responsible for ensuring workers’ safety and observing basic safety precautions at the development site, the prosecutors said.

Federal and city safety regulations require all excavations deeper than five feet to be fortified in order to protect workers from cave-ins before permanent support systems can be implemented.  

However, in this case, the trenches were as deep as 14 feet and lacked any fortification or shoring, prosecutors allege.

For several months, the managers were given warnings from private inspectors regarding the unsafe conditions at the site, but they did nothing, according to prosecutors.

Fatal Incident

On the morning of the fatal collapse, a private inspector reportedly noticed that a seven-foot-deep trench was unprotected, authorities said.

The inspector was said to have alerted Prestia and Cueva that no workers should be allowed to enter the trench while the sides were unfortified. However, less than an hour later, the inspector observed four workers inside the trench that had reached approximately 13 feet in depth, prosecutors allege.

Shoring
Manhattan District Attorney's Office

Federal and city safety regulations require all excavations deeper than five feet to be fortified in order to protect workers from cave-ins before permanent support systems can be implemented.

About an hour later, Prestia allegedly instructed the workers, in English, to get out of the pit. The workers who spoke primarily Spanish remained in the trench, however.

About 20 minutes later, Cueva gave the same direction to workers in Spanish.

According to the DA’s Office, “moments later” the trench collapsed sending thousands of pounds of dirt atop Moncayo—an Ecuadorean immigrant and Spanish speaker.

Stop Work Issued

The New York City Department of Building immediately issued a Stop Work Order against Harco, and suspended the contractor’s license to perform general contracting services in New York City.

The DOB also subsequently issued a Stop Work Order at another construction site on which Sky was serving as the excavation subcontractor.

Construction on the Restoration Hardware store site has since resumed, CBS reported.

‘Avoidable’ Death

“Carlos Moncayo’s death at a construction site was tragic, but it was also foreseeable and avoidable,” District Attorney Vance said in a statement.

“Excavation work and trenching are some of the most dangerous jobs on a construction project, and it is during these critical moments that adherence to safety protocols and procedures is essential.

Vance
Official Photo

“Carlos Moncayo’s death at a construction site was tragic, but it was also foreseeable and avoidable,” Manhattan District Attorney Cyrus R. Vance Jr. said in a statement.

“In this case, the defendants are charged with recklessly disregarding their professional responsibility to protect workers, and we must do everything in our power to prevent similar incidents.”

Statements

In responding to the charges, Harco Construction’s attorney called the death a “tragic accident,” according to a local CBS affiliate.

“There will not be a settlement or plea in this case,” attorney Ron Fischetti said. “We wish to go to trial as quickly as possible, and we are sure we will be vindicated.”

Brian Gardner, the attorney for Sky Materials, told the New York Times the company was "saddened" by the incident but does not believe it should be the subject of a criminal prosecution.

Attorneys for Cueva and Prestia also maintained their clients' innocence in the case, according to the newspaper.

Protocol Changed

Moreover, in the aftermath of the incident, the city now requires inspectors to report unsafe conditions to the DOB as well as the contractor on the job.

“Why didn’t we do it his way five years ago? Honestly, we should have,” Peters told CBS.

A task force has also been launched to investigate misconduct in the bustling New York City building industry.

   

Tagged categories: Construction; Criminal acts; Ethics; Fatalities; General contractors; Health and safety; Laws and litigation; Retail; Subcontractors

Comment from john lienert, (8/10/2015, 8:53 AM)

private inspectors=fox watchin' the chickens


Comment from Tom Schwerdt, (8/11/2015, 8:09 AM)

Sounds like the private inspector was doing his job properly.


Comment from M. Halliwell, (8/14/2015, 11:43 AM)

John, depending on who is hiring and paying the inspector, there could be a bit of conflict of interest / fox watching the hen house (esp. if it is the construction company's owner's brother or something like that). If the inspector is independent of the construction firm (i.e. hired by the owner) and knows what they are doing, they can be an extremely valuable resource. In this case, it sounds like the inspector was doing his / her job and notified the contractor of the condition...but didn't have the authority to stop the work. -Mike


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