This photo from the Manhattan DA

Two Charged with Manslaughter After Trench Fatality

Wilmer Cueva and Alfonso Prestia, respectively Sky Materials Corp.’s foreman and Harco Construction LLC’s senior superintendent, are charged along with their companies with recklessly causing the death of Carlos Moncayo, a Sky employee, in April 2015.

Manhattan District Attorney Cyrus R. Vance Jr. and New York City Department of Investigation Commissioner Mark G. Peters announced Aug. 5 that Wilmer Cueva and Alfonso Prestia, respectively Sky Materials Corp.'s foreman and Harco Construction LLC's senior superintendent, are charged along with their companies with recklessly causing the death of Carlos Moncayo, a Sky employee, in April 2015.

They announced the two men and their companies have been indicted and charged with manslaughter in the second degree, criminally negligent homicide, and reckless endangerment in the second degree. Moncayo was working in an unprotected trench at a construction site, 9-19 Ninth Ave., on April 6, 2015, when the trench collapsed, killing him.

"Carlos Moncayo's death at a construction site was tragic, but it was also foreseeable and avoidable," Vance said. "As detailed in court documents, repeated warnings about safety hazards at 9-19 Ninth Avenue were issued in the months, weeks, and even minutes before a trench collapsed, killing Mr. Moncayo. 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. 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. I thank our partners at DOI, the NYPD, and OSHA, as well as the members of our Construction Fraud Task Force, for their commitment to ensuring the safety and integrity of building sites throughout the city."

According to the indictments and documents filed in court, between December 2014 and March 2015, Sky, an excavation subcontractor, and Harco, a general contractor, managed and oversaw construction work at 9-19 Ninth Avenue between West 13th and Little West 12th Streets 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.

Both the New York City Building Code and OSHA regulations require that excavations deeper than 5 feet must be shored or sloped to protect workers from cave-ins before permanent support systems can be implemented. According to Vance's news release, Domani Inspection Services, Inc. was hired in February 2015 to conduct inspections at the site. "From the outset of the assignment, a Domani inspector noticed that conditions at the excavation site were severely lacking with respect to workers’ safety. Moreover, the trenches at 9-19 Ninth Avenue were not secured by either sloping or shoring methods. Despite meetings with the defendants and repeated email warnings about these deficiencies, safety practices did not improve and persisted for a period of several months," the release states. "On April 6, 2015, at approximately 9:45 a.m., a different Domani inspector arrived at the 9-19 Ninth Avenue site and noticed that a seven-foot-deep trench was unprotected by any system of fortification. The inspector rushed to alert Presia, who was inside a trailer at street level with no sightline to the excavation pit. The inspector informed Prestia that no workers should be allowed to enter the trench while the sides were unfortified, and delivered the same directions to Cueva, who was on site supervising excavation work.

"At approximately 10:35 a.m., the same inspector witnessed four workers inside the unfortified trench, which had reached approximately 13 feet in depth. The inspector informed Cueva that the workers needed to get out of the unprotected trench immediately, and suggested an alternative method of completing the task at hand that did not require the workers to be inside the trench. Cueva, however, refused the inspector's proposal and did not halt ongoing work in the trench. The inspector ran to the trailer to alert Prestia and went back to the pit to reiterate his concerns to Cueva. At this time, both of the defendants had received two separate and individual warnings about inadequate safety conditions in the trench," the release continues. "Nearly two hours after receiving the first warning, Prestia left the trailer at approximately 11:30 a.m. and, in English, instructed the workers to get out of the trench. However, the workers—who spoke primarily Spanish—continued working in the trench. A Sky employee approached by the Domani inspector about the unsafe conditions spoke with Cueva, and at approximately 11:50 a.m., Cueva called out to the crew in Spanish. Moments later, the trench collapsed and fatally crushed Carlos Moncayo, a 22-year-old worker."

The New York City Department of Buildings subsequently issued a Stop Work Order against Harco and suspended its license to perform general contracting services in New York City, and the department also issued a Stop Work Order at another construction site on which Sky was serving as the excavation subcontractor.

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