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NY Firm Sentenced in Fatal Trench Case

Friday, July 15, 2016

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A Manhattan Supreme Court judge has ordered a construction company to fund public service announcements on worker safety as punishment in a manslaughter case; however, attorneys for the company say it will not comply.

Harco Construction LLC a/k/a H&H Builders Inc. was convicted of second degree manslaughter, criminally negligent homicide and three counts of reckless endangerment in June following a trial.

Carlos Moncayo
Photos: Manhattan District Attorney's Office

The case stems from the trench April 2015 death of 22-year-old Carlos Moncayo.

The case stems from the trench April 2015 death of 22-year-old Carlos Moncayo. Judge A. Kirke Bartley found Harco responsible for Moncayo’s death by failing to address dangerous conditions at the retail project under construction.

The nonunion contractor will avoid fines or jail time, on the condition that it produce print and TV public service announcements in English and Spanish to promote jobsite safety, reports say, citing the judge’s ruling.

Attorney: Company to Not Obey

However, following the order issued Wednesday (July 13), one of Harco’s attorneys, Ronald Fischetti, reportedly told media outlets the sentence was in violation of the company’s First Amendment Rights and it will “not obey it.”

“And if we don’t, the judge’s only recourse is to impose the $10,000 fine,” he added. The company plans to appeal the judge’s verdict and blames the subcontractor for the worker’s death, reports said.

A conditional hearing on whether Harco has met the terms of the sentence is scheduled for Dec. 14, reports relate.

Prosecutors: Not Pleased

In a joint statement following the hearing, the Manhattan District Attorney Cyrus Vance Jr. and the city’s Department of Investigation Commissioner Mark Peters criticized the lenient sentence.

Prosecutors had pushed for a $35,000 fine on top of the public service campaign.

Cyrus Vance

District Attorney Cyrus Vance argues that stiffer penalties are needed to deter criminal conduct in the construction industry.

“While we believe that the conviction alone should deter future negligence, unfortunately, the penalties that corporations face are modest and not commensurate with the harm caused, especially when an innocent worker like Carlos Moncayo dies,” the statement read.

“Stiffer penalties, such as ones specifically related to corporate conduct leading to death and serious physical injury, are needed to deter criminal conduct and protect the integrity of the construction industry.”

The Fatal Collapse

Moncayo, an Ecuadorean immigrant and Spanish speaker, was killed April 6, 2015, when an unsecured trench he was working in collapsed and fatally crushed him. Harco was the general contractor, managing construction work at the site of a future retail store in the city’s Meatpacking District. Moncayo worked for Sky Materials Corp., an excavation subcontractor.

Harco Site

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. The trenches at the New York City jobsite were as deep as 14 feet without shoring, prosecutors said.

The trenches at the site were as deep as 14 feet and lacked any fortification or shoring, prosecutors alleged.

According to the Manhattan District Attorney’s office, inspectors on the jobsite that morning warned supervisors multiple times that the trench was dangerous, but the supervisors’ attempts to get workers out of it were allegedly delayed and insufficient.

Charges were filed against Harco, as well as Sky Materials and two supervisors, Wilmer Cueva, 50, and Alfonso Prestia, 54, in August 2015. Cueva served as Sky’s foreman and Prestia was a senior superintendent with Harco.

Sky Materials and Cueva are being tried separately and their trial has not begun.

‘Important Case’

“The trial conviction of Harco Construction stands out in recent New York City history as an important instance in which a company is held criminally responsible for the death of a worker at its site,” Vance and Peters said.

“This conviction sends the message that general contractors cannot avoid criminal responsibility for worker safety, even if the workers are not their employees.”

Contractors across the country have recently been held criminally accountable for unsafe conditions.

Last year, 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.


Tagged categories: Commercial contractors; Construction; Criminal acts; Ethics; Fatalities; Good Technical Practice; Health and safety; Inspection; Laws and litigation; North America

Comment from M. Halliwell, (7/15/2016, 10:50 AM)

Inspected the day of and both supervisors were made aware of the safety issue...yet Moncayo was still permitted to work in the unsafe trench that took his life. I'm thinking the Harco will also try to hang the supers out at their trials. If Harco doesn't want to comply with community service sentence (which is essentially what the PSA would be), I guess the justice could always suspend the company's license in lieu of jail time (like taking a drunk's driver's license) for a while...maybe 3 or 6 months? I'm sure not being able to operate for that length of time would drive home the point and hit the company in the pocket book for far more than the $10k.

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