Manhattan prosecutors go after builders on construction-site safety
Source: Dow Jones News Service, August 26, 2016
Posted on: http://www.advisen.com
As construction accidents have surged, Manhattan prosecutors are pushing to bring criminal charges against builders they say have sacrificed worker safety for profits.
That effort was on full display one afternoon at the Manhattan district attorney’s office where prosecutor Diana Florence gathered a group of worker advocates and foreign-consulate representatives around a conference table. As the guests sipped coffee and nibbled on pastries, Ms. Florence and a colleague stressed the importance of photographing unsafe construction sites, truthfully reporting injuries and speaking to investigators, who they said wouldn’t turn in undocumented workers.
“Our workers are our witnesses and our victims,” Hildalyn Colón-Hernandez, an immigrant-affairs coordinator in the district attorney’s office, told the group.
A construction boom in New York City has created what Manhattan District Attorney Cyrus Vance Jr. says is an environment where builders are incentivized to cut corners. Last summer his office, the city’s Department of Investigation and other agencies formed a task force to investigate not just worker deaths, but also fraudulent safety inspections, bribery and other crimes they say can create unsafe conditions. The district attorney’s office has since sought to build and prosecute cases around such crimes.
Those efforts got a boost in June when a general-contracting firm, Harco Construction LLC, was convicted of manslaughter in the death of Carlos Moncayo, a worker killed in 2015 when a trench collapsed at a construction site in Manhattan’s Meatpacking District. It was the first manslaughter conviction in the office’s recent push and prosecutors say it established that a firm managing a project can be held criminally liable for a worker’s death, even if that person isn’t its direct employee.
“It’s the shorthand for all the trials that have come and will come,” Ms. Florence said of what she refers to as “the Moncayo case.”
Ronald Fischetti, an attorney for Harco, said the firm was confident the verdict would be overturned on appeal.
The conviction, and prosecutors’ broader efforts, have rattled the construction industry. Some are privately concerned about a rush to hold companies criminally liable for inherently dangerous work, while publicly they have distanced themselves from Harco and other companies they see as outliers.
“The fact that a corporation was convicted did send a bit of a shock wave through the industry generally,” said J. Bruce Maffeo, a criminal defense attorney who participated in a construction-company seminar about the verdict.
There were 92 million square feet of new construction in 2015, up from 19 million in 2011, according to the city’s Department of Buildings.
During that same period, accidents more than tripled, from 128 in 2011 to 435 in 2015. There have been five construction-related deaths so far this year, compared with 12 last year and eight in 2014, data show.
Representatives of the industry have said they do everything possible to prevent accidents, but that the very nature of construction is dangerous.
Some have said Harco is a bad actor and doesn’t represent the larger industry. Louis Coletti, president and chief executive of the Building Trades Employers’ Association, wrote in a letter to the judge that his members are “sick and tired of contractors like Harco defining the public perception” of company concerns about worker safety.
To call Harco a “bad actor” simply isn’t true, said Mr. Fischetti, Harco’s lawyer. While the firm did have prior city safety violations, such warnings are typical of companies in the industry, he said.
Industry representatives say another complicating factor is the intertwined responsibilities of companies, contractors, subcontractors and workers.
“The way we’re structured in the industry makes it difficult to figure out who the culprit is,” said Raymond McGuire, general counsel to the Contractors’ Association of Greater New York Inc., a trade group.
Past attempts to bring manslaughter charges in construction accidents have been largely unsuccessful. The Manhattan district attorney’s office, under Robert Morgenthau, charged three site supervisors and a subcontractor in the 2007 deaths of two firefighters at the former Deutsche Bank building in lower Manhattan. All were acquitted of manslaughter, and a subcontractor was convicted of a misdemeanor.
The office also brought manslaughter charges following two separate crane collapses in 2008. One, on East 51st Street, killed seven, and the other, on East 91st Street, killed two.
In both cases all parties were acquitted of criminal charges.
Pending cases with manslaughter charges include the people allegedly involved in the East Village building explosion and that of a worker who died on a Neptune Avenue construction site in Brooklyn, which was brought by the Brooklyn district attorney’s office. “There will be more cases like that to come,” said Department of Investigation Commissioner Mark Peters.
Ms. Florence said she has given 23 presentations to more than 780 workers since January, and that when she talks about Mr. Moncayo’s case, many of them say they never knew such accidents could be a crime
She said she is pursuing more construction cases, but carefully choosing where to bring charges.
“In my heart of hearts, I think, ‘That’s criminal,'” she said, of some of what she sees and hears from workers. “But my heart of hearts is not evidence.”
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Harco Construction found guilty of manslaughter, criminally negligent homicide in fatal 2015 Meatpacking District collapse
Lawyers for Harco Construction LLC look dejected after a judge declared the company guilty of manslaughter Friday. (Jefferson Siegel/New York Daily News)
BY Shayna Jacobs
NEW YORK DAILY NEWS
Friday, June 10, 2016, 7:24 PM
Harco Construction Corp. was convicted Friday of manslaughter and criminally negligent homicide in the death of a 22-year-old hardhat.
The company was found guilty in front of a packed courtroom by Justice A. Kirke Bartley after an emotional bench trial in Manhattan Supreme Court.
Relatives of worker Carlos Moncayo, an Ecuadorian native, cried after hearing the judge's finding.
Prosecutors argued that Harco created unsafe working conditions that led to Moncayo getting buried in a collapsing excavation pit in the Meatpacking District on April 6, 2015.
Building boom sees spike in construction deaths
Carlos Moncayo was killed in the April 2015 collapse in the Meatpacking District. (Louis Lanzano/for New York Daily News)
Charges against William Cueva, a foreman, and Alfonso Prestia, a superintendent, are still pending. A case is also still open against subcontractor Sky Materials Corp.
Harco faces monetary penalties as a result of its conviction.
"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," Manhattan DA Cyrus Vance Jr. said in a statement.
Blanca Garcia (l.), mother of Carlos Moncayo, breaks into tears after a judge declared Harco Construction LLC guilty of manslaughter. (Jefferson Siegel/New York Daily News)
"Just as a supervisor can be held accountable for a safety lapse resulting in a fatality at a factory, construction companies are responsible for the safety of the individuals that work on their projects, regardless of union or immigration status."
Gary LaBarbera, who heads up the Building and Construction Trades Council of Greater New York, hailed the conviction as "landmark." It "sends a clear message that irresponsible contractors and foremen will be held accountable for a worker's death." ==================
EXCLUSIVE: As NYC’s building boom takes off, number of site-safety inspectors drop – and construction fatalities spike
Eighteen workers died during the last federal fiscal year (Oct. 1, 2014, through Sept. 30, 2015) at job sites in New York City. (James Keivom/New York Daily News)
BY Greg B. Smith
NEW YORK DAILY NEWS
Sunday, October 18, 2015, 4:00 AM
It's a recipe for disaster.
As the city’s building boom has taken off, the number of available site-safety inspectors has dropped while the number of workers dying at construction sites has spiked, a Daily News investigation has found.
Eighteen workers died during the last federal fiscal year (Oct. 1, 2014, through Sept. 30, 2015) at job sites in New York City. That’s up from 12 during the previous 12 months and seven the year before that, according to the U.S. Occupational Safety & Health Administration.
MANHATTAN CONSTRUCTION WORKER, 30, FALLS 8 STORIES TO HIS DEATH
Nine workers fell to their deaths, almost always at job sites where safety measures were nonexistent. Several were crushed to death by walls that weren’t properly braced. Improperly secured steel trusses rolled on top of another worker.
A construction worker places flowers at a memorial where a fatal accident took place. (Tomas E. Gaston for New York Daily News)
And that doesn’t even include a passerby killed by plywood that flew off a construction site in Greenwich Village in March, or a worker fatally struck by a small boom crane in Midtown in April.
It’s not supposed to be that way. Contractors are required to follow a litany of job safety rules, and to make sure they do, they must hire site-safety inspectors to police job sites and keep everybody in line.
The problem is that the number of available inspectors in the city has dropped steadily from 1,171 in 2011 to 1,105 in 2014, a dip of nearly 6%, records obtained under the Freedom of Information Law show. And this is happening at the worst possible time — as the number of building permits has jumped about 18% from 121,000 in 2011 to 142,000 in 2014, city Buildings Department records show.
Each year, more site-safety managers retire than enter the profession, and several New York City contractors told The News that this disturbing trend is making job sites more dangerous.
“What’s really bad is the inconsistency of the safety. It’s become more unsafe,” said one veteran construction manager currently running $350 million in projects citywide who requested anonymity to preserve his relationship with the Buildings Department.
(Richard Harbus for New York Daily News)
(Facebook) Worker weeps in April after the steel arm of a minicrane killed construction safety coordinator Trevor Loftus (right) on E. 44th St. near Second Ave.
Contractors said as the supply of safety managers has dwindled, the rates they charge have skyrocketed. As a result, they say, inspectors now routinely jump to better-paying jobs in the middle of ongoing projects to snag higher pay. “It’s creating an opening for a dangerous condition because there’s no continuity,” he said. “Guys are jumping ship left and right because they can make more money down the block.”
Another veteran construction manager, currently running 10 big projects, said some of the safety managers now showing up have come out of retirement because the rates are so high, and they’re less aggressive about enforcing safety. “Because there are not that many (site-safety managers) out there, people are coming back out of the woodwork,” said the manager. “Their (license is) up to date, but they’re more sedentary. They’ll sit at their desk. You can’t see what’s safe when you’re sitting at your desk.”
And last year, the city Department of Investigation found some site-safety managers weren’t even the real deal. Two companies were busted for paying a short-order cook, a hotel bellhop and a hairdresser to masquerade as inspectors and sign off on safety reports.
(Tomas E. Gaston for New York Daily News)
Christian Ginesi, an Air Force veteran, died when he fell down an elevator shaft in a hotel tower under construction at 301 W. 46th St. (right) in May.
How important are competent safety inspectors? The answer was made crystal-clear April 6 at a particularly dangerous job site in the trendy Meatpacking District. An inspector at 19 Ninth Ave., where a high-end furniture store was under construction, kept warning contractors about myriad serious safety problems.
The subcontractor at the site, Sky Materials, ignored repeated warnings, and, predictably, disaster struck. Laborer Carlos Moncayo, 22, was buried alive when a 14-foot trench he was digging collapsed on him.
OSHA discovered the workers digging that pit had undermined the sidewalk above, and there was no brace in place to protect them — a basic safety feature.
A site-safety manager had warned the contractor a week before, a day before and even minutes before the collapse that the job was unsafe.
OSHA fined Sky Materials and the general contractor, Harco Construction LLC, $142,000 each for multiple safety violations, including two dubbed “willful.”
“Carlos Moncayo was a person, not a statistic,” said OSHA New York City director Kay Gee. “This unconscionable behavior needlessly and shamefully cost a man his life.”
Worker Vidal Sanchez-Roman, 50, fell from a sixth floor that lacked a guardrail as he raked concrete at 360 Neptune Ave. in Brooklyn. J&M Metro General Contracting was hit with $84, 600 in fines. (Todd Maisel/New York Daily News)
In June, OSHA slapped Formica Construction with a $121,000 fine after laborer Delfino Velazquez, 43, was crushed when a floor collapsed on him during a botched demolition on Staten Island. Formica had been hit with prior penalties in an earlier worker death.
STATEN ISLAND CONTRACTOR IS BLAMED — AND FINED $121,000 — FOR DEATH OF CONSTRUCTION WORKER CRUSHED AT A DEMOLITION SITE
Other fatalities are still under investigation. Elevator worker Christian Genisi, 22, fell to his death May 5 riding a lift that stalled on an upper floor. Investigators found the hoist was powered by an “unsafe” jury-rigged electrical system.
Attorney Jacob Oresky, who represents Moncayo’s family and has litigated numerous construction accident lawsuits, says the root of the problem is simple — some contractors choose profits over lives.
“The dollar is their primary concern, making profits and cutting expenses while risking lives of their workers,” Oresky said.
He recalled a case where a contractor didn’t want to spend the money to erect a proper scaffold, so he had a welder put down wooden planks on top of a fire escape. One of the planks tipped over and the worker fell three stories and landed on his head.
In May 2015, a crane collapsed at 261 Madison Avenue near East 38th Street in Manhattan. (Theodore Parisienne for New York Daily News)
“A lot of them make the workers wear the safety vests in case an inspector shows up, but they have no safety lines to attach them to,” Oresky said.
CONSTRUCTION WORKER WHO FELL 24 STORIES TO HIS DEATH IN MIDTOWN WAS RIDING UNSAFE ELEVATOR POWERED BY JERRY-RIGGED ELECTRICAL SYSTEM
He says stronger steps are needed to convince contractors that endangering workers is a bad idea. One such step occurred after Moncayo’s death. In an unusual move, Manhattan District Attorney Cyrus Vance Jr. in August criminally charged two onsite managers from Harco and Sky Materials with negligence in that disaster.
Over the summer, lobbyists hired by contractors pressed the city to speed up license approval to get more safety managers onsite.
“The process has caused tremendous delays, and as a result leaves the building industry without enough qualified site-safety supervisors,” lobbyist Bradley Gerstman wrote to Buildings Commissioner Rick Chandler in August.
So far this year, the agency has looked at 19 applicants, 14 of whom were approved within six months. Reviews of the other five applicants are pending.
Buildings Department spokesman Alexander Schnell said six months is the “general time frame it takes to assess and approve a candidate,” noting that applicants must pass a test and undergo a thorough background check.
“This takes time,” Schnell said. “This involves checking past permits, associations and any other qualifying documentation to confirm their employment.”
Each year, more site-safety managers retire than enter the profession, and several NYC contractors told The News that this disturbing trend is making job sites more dangerous. (EDUARDO MUNOZ/REUTERS)
And the department this year changed regulations to free up safety inspectors on building facade jobs. Before they had to stay onsite full time; now they can show up for two hours, then go to another site.
“This change was made once it was determined that allowing the modification wouldn’t compromise safety,” Schnell said. “This went into effect at the beginning of this calendar year, and we have had no issues.”
In August, Vance, the Department of Investigation, the Port Authority, Metropolitan Transportation Authority inspector generals and the city Business Integrity Commission formed a task force to track down bad-actor contractors. “A rush to develop can often result in hazardous lapses in safety practices,” Vance said. “There are consequences to New York City’s historic building boom.”
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Construction worker who fell 24 stories to his death in Midtown was riding unsafe elevator powered by jerry-rigged electrical system
Christian Ginesi, 25, was killed in May, falling 24 stories at Midtown construction site. (Family Handout)
BY Greg B. Smith
NEW YORK DAILY NEWS
Monday, June 15, 2015, 2:30 AM
A worker who fell to his death at a Midtown construction site was riding an elevator powered by an “unsafe” jerry-rigged electrical system, the Daily News has learned.
Christian Ginesi and a co-worker were on a temporary hoist — common at construction sites — headed to the top of a hotel being built on Eighth Ave. on May 5 when the lift stalled between the 24th and 25th floors.
Ginesi’s colleague successfully jumped from the lift to the lower floor, but Ginesi slipped and plummeted 24 stories to his death.
Since then, city building inspectors looking into the cause of the accident discovered the lift suddenly lost power that day, and the electrical system that powered it was installed without a permit.
The elevator relied on “unapproved, unsafe, unsuitable electrical equipment” that shouldn’t have been in use, documents show.
The city issued two violations for the improper electrical system against the 31-story building’s owners, 741 Eighth Ave. Owners LLC, an affiliate of Riu Hotels, a Spanish international hotel chain.
The hoist was ordered shut down after the accident. Last week, the city allowed the lift to resume operation but required the owners to use a different power source, officials told The News.
Howard Hershenhorn, a Manhattan attorney representing Ginesi’s family, said the findings indicate the 25-year-old man’s death should never have occurred.
“It’s obvious that this is an enormous tragedy, which could have absolutely been prevented had basic safety measures been put in place,” Hershenhorn said.
Ginesi’s distraught mother, Laurie Anne Smith, is still reeling from the loss of her son, a decorated Air Force veteran who served in Afghanistan.
“If it could have been prevented, then I’m very, very angry about that. lf I could still have my son back in my life ...” she said, breaking down into sobs.
The city also issued safety violations against the general contractor on the job, Rinaldi Construction of Secaucus, N.J., and the elevator subcontractor that employed Ginesi, G-Tech Associates of Linden, N.J.
G-Tech and Rinaldi were both cited for unsafe work conditions, including failing to provide safety netting in the elevator shafts, records show.
1 | 3 Ginesi died while helping construct hotel at 741 Eighth Ave. (Andrew Savulich/New York Daily News)
Hershenhorn said Ginesi wouldn’t have died “had there been safety netting, had there been safety harness and had there been a working electrical system.”
“There’s blatant violations of multiple laws in the state of New York, which caused this senseless death,” he said.
A Rinaldi spokesman said four of the five violations have since been resolved. G-Tech officials did not respond to requests for comment.
Officials at the International Union of Elevator Contractors Local 1 said workers like Ginesi are unlicensed and untrained to work on high-rise elevators in such conditions.
“They weren’t getting the proper training,” said Local 1 organizer Mike Halpin. “It’s a really, really dangerous industry and to put somebody in there without proper training, that’s insane.”
Last week, the union was pushing a bill in Albany to require all elevator mechanics to receive specific training and get a license.
More than a month has passed, but Smith still has difficulty talking about her son, and says she feels his absence everywhere she goes.
“We are struggling to function every day,” she said. “Everybody in our family, our lives are shattered. I feel like I’m being tortured on a daily basis. I cry every day. I miss him so much. I was very close to him. He was really an amazing human being. He was the best friend a parent could ask for.
“Whatever the problem was, I hope that it will never happen for another mother and father,” she said. “This is every parent’s worst nightmare, losing their child.”
Perhaps the saddest aspect of the Building Department’s investigation is the discovery about Ginesi’s mission that day.
Ginesi was headed to the top floor to attach a safety lifeline to which he and other workers putting doors on the building’s internal elevator would attach a safety harness. He never got there.
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Manhattan construction worker, 30, falls 8 stories to his death
The worker fell from the 10th floor and landed on a second-floor scaffold on E. 76th St. near Third Ave. on Tuesday afternoon, according to cop sources. (Gregg Vigliotti/For New York Daily News)
BY Joseph Stepansky
NEW YORK DAILY NEWS
Wednesday, September 2, 2015, 4:04 AM
A 30-year-old construction worker plunged eight stories to his death at an Upper East Side building Tuesday, cop sources said.
The man fell from the 10th floor and landed on a second-floor scaffold on E. 76th St. near Third Ave. around 4 p.m., the sources said. He was taken to New York-Presbyterian Hospital Weill Cornell but couldn’t be saved, according to the sources.
The NYPD and city Buildings Department were investigating. Posted documents say facade and roof work are permitted there.