BY YANNIC RACK | A judge found a construction company guilty of manslaughter on Friday in the death of a 22-year-old construction worker who was crushed in a trench collapse while working in the Meatpacking District last year.
State Supreme Court Judge Kirke Bartley also found Harco Construction guilty of criminally negligent homicide and reckless endangerment in the April 2015 death of Carlos Moncayo, an undocumented immigrant from Ecuador who was living in Queens.
Moncayo worked for excavation subcontractor Sky Materials Corp., which is also facing trial.
Workers’ rights activists particularly heralded this week’s verdict because it marks the first instance of a general contractor being held responsible for a worker’s death at a construction site.
“We think it is a historic decision, in particular because it holds a general contractor criminally responsible,” said Nadia Marin-Molina, associate director of the New York Committee for Occupational Safety and Health.
“In this case it’s a corporation, and they obviously were not able to shift the blame to the subcontractor or anyone else,” she added.
Cy Vance, the Manhattan district attorney, echoed the sentiment in a statement after the verdict was announced.
“Carlos Moncayo’s death at a Manhattan construction site may have been foreseeable and preventable, but his family can be assured that it will not be in vain,” said Vance, whose office has been working to use criminal prosecutions to stem construction deaths in New York City.
“Today’s guilty verdict should signal to the construction industry that managing a project from afar does not insulate a corporation or general contractor from criminal liability.
“Just as a supervisor can be held accountable for a safety lapse resulting in a fatality at a factory,” Vance said, “construction companies are responsible for the safety of the individuals that work on their projects, regardless of union or immigration status.”
On April 6 of last year, Moncayo was working at 9-19 Ninth Ave., where Aurora Capital Associates and William Gottlieb Real Estate are developing the former site of Keith McNally’s French bistro Pastis into a Restoration Hardware home-furnishings store.
The worker died when an unsecured 13-foot-deep trench caved in, burying him under a mound of debris.
City and state regulations mandate that any excavations deeper than 5 feet be fortified by either shoring them up with barriers or sloping the trench walls outward.
All defendants in the case — which also include Sky Materials foreman Wilmer Cueva and Harco supervisor Alfonso Prestia — are accused of ignoring multiple warnings about unsafe and illegal conditions at the site.
The managers allegedly failed to react to multiple red flags during the excavation, where the trenches had lacked the necessary security precautions for months, according to e-mail records from an inspection service cited by prosecutors.
On the morning of the accident, an inspector noticed a 7-foot-deep trench that was unprotected, and subsequently alerted both Prestia and Cueva that no workers should be allowed inside the pit, according to prosecutors.
An hour later, the same inspector witnessed four workers inside the unfortified trench, which was now 13 feet deep. According to the statement, the inspector again reported the situation to both managers, but this time Cueva flat-out refused to halt the work.
Prestia eventually did tell the workers to leave the trench, according to prosecutors, but they didn’t understand his instructions, which were given in English.
When Prestia allegedly repeated the orders in Spanish about 20 minutes later, it came too late for Moncayo, who only moments later was buried under a mountain of dirt.
Harco’s lawyers contended at trial that Sky was responsible for Moncayo’s death and that the company couldn’t control the details of the subcontractor’s work, according to Newsday.
A lawyer representing Harco did not immediately return a call for comment.
Representatives for developers Aurora and Gottlieb also didn’t respond to a request for comment by press time.
After Friday’s verdict, Moncayo’s mother, sister and brother-in-law, who were present during most of the trial, broke down crying in the courtroom, according to DNAinfo.
Harco is scheduled to be sentenced July 13, and Marin-Molina said the sentence would hopefully include a hefty fine and result in lost business for the company — and ultimately send a message to the whole construction industry.
“Unfortunately, we can’t put a corporation in jail yet,” she said. “But right now we think there are monetary penalties and the corporation stands to lose contracts if it has a criminal conviction.
“[It sends a message] that they can’t get away with it,” she added. “Most of the time, these companies say, ‘Oh it’s so sad, it was just an accident, nothing could have been done.’ But in this case, someone was there and it was so clear that the company knew and didn’t do anything. They should be paying attention.”
