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Company blames subcontractor for Manhattan cave-in trial death

A Manhattan judge on Friday, June 10, 2016,

A Manhattan judge on Friday, June 10, 2016, found general contractor Harco Construction guilty of manslaughter in the trench-collapse death last year of worker Carlos Moncayo, above, in a verdict that could set a new standard for liability on construction sites. Photo Credit: Manhattan DA

The lawyer for a company accused of manslaughter in the trench cave-in death of Ecuadorean immigrant Carlos Moncayo last year pointed the finger of blame at a Long Island excavation subcontractor as trial began Wednesday in Manhattan Supreme Court.

“Our position is that Sky Materials failed to perform the necessary safety practices in excavating the hole that collapsed,” said Ron Fischetti, the lawyer for Harco Construction LLC, general contractor at a 9th Avenue site where Moncayo was buried alive last April.

Harco and Sky, with facilities in Calverton and Queens, have both been charged, along with supervisors for both companies, but Harco is being tried first by itself. Sky, which employed Moncayo, and its owner Michael Cholowsky also are being prosecuted for insurance fraud.

Prosecutor Diana Florence told Justice Kirke Bartley, who is trying the cave-in case without a jury, that a series of emails show that officials at both companies were aware of dangerous site conditions — trenching without slopes or shoring — and failed to act.

She called the death of Moncayo, 22, during excavations for a Restoration Hardware headquarters at the site of an old stable in the Gansevoort Market District a “senseless … and utterly avoidable” crime.

“This was not an accident of nature,” she said. “It was the result of a reckless and foreseeable act.”

Harco and its site supervisor, Alfonso Prestia, who is being tried separately, and Sky and its foreman, Wilmer Cueva, are all charged with criminally negligent homicide and reckless endangerment in addition to manslaughter

Fischetti’s opening argument suggested the trial will focus on allocating blame.

He conceded that the trench was unsafe, but said it was the fault of Sky foreman Cueva, and told Bartley the general contractor couldn’t micromanage the subcontractor or fire its foreman.

“The trial issue is not whether Harco’s subcontractor performed properly,” he said. “It did not. The issue is what did Harco do, what was its knowledge.”

But Florence said the email traffic would show that Harco’s supervisor Prestia was central to the failings. “He received repeated warnings, and he ignored those warnings,” she said.

Moncayo, prosecutors say, was an undocumented worker who came to the United States after graduating from high school and took a $500 OSHA-required course on building scaffolding. The unshored trench he died in was allegedly 14 feet deep when it collapsed.

Lawyers for Sky and Cueva did not respond to emails seeking comment.


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