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Fatal Construction Accident Leads to Homicide Charges

Two construction managers are now facing homicide charges in the death of a Queens construction worker who was crushed by a collapsing wall in a deadly accident in Manhattan's Meatpacking District. The construction managers, Wilmer Cuevas and Alfonso Prestia, inexplicably refused to shut down a construction site on 9th Avenue earlier this year despite the pointed warnings of an engineer who recently inspected the work. The engineer, according to the indictment warned the man that continuing work at the site was too dangerous. The engineers pleas were completely ignored.

Cueva, an employee with Sky Materials Corp and Prestia, an employee with Hartco Consultants Corp., have each been charged with counts of manslaughter, criminally negligent homicide and reckless endangerment. They face up to 15 years in jail. Prestia's employer Hartco was fined $12,000 for failing to protect a worker during excavation operations. It is not clear whether Sky Materials was fined.

The indictment is a textbook example of why worker safety laws are critical. The accusation includes evidence that an independent engineer initially voiced safety concerns to Prestia, the site superintendent. The engineer reportedly pleaded with Prestia to issue a stop work order. Prestia ignored the engineer entirely. The engineer, after being shunned by Prestia, went to the foreman Cueva and demanded that work be stopped because of a risk of serious injury or death. Cueva similarly refused to stop the work. The engineer was attempting to persuade the project manager to order that work be stopped at the site when the tragedy occurred.

We will allow the criminal case and the evidence to determine what if any charges are appropriate for the two individuals. A jury will be entrusted with that important decision. Endeavoring to comment on an ongoing criminal investigation is a risk riddled proposition. However, the climate that continues to exist at construction sites across New York is something we are quite comfortable opining on. When two experienced construction supervisors flatly refuse to stop work at a construction site - - even in the face of pleas by a safety engineer for a work stoppage because the area was dangerous - - you have to wonder what the motivations are . . . It says here this tragic loss of life occurred solely because of the pressures put on the workers to finish the job faster. When there is a race to the finish line inevitably the people in charge of safety will cut corners to reach the finish line faster. The result: serious accidents that result in life altering injuries or, like in this case, senseless death.

The consequences to the companies involved are too insignificant to make an impact. A criminal homicide charge would resonate with companies across the state if there was some practical way to enforce it. There really isn't. The $12,000 fine will do little to deter the company from employing a similar shortcut in the future. That is why the civil worker safety laws in New York remain as vital as ever. New York Labor Law §240 holds property owners, developers and general contractors civilly liable when a failure to provide a safe workplace causes a worker to be injured at a construction site. It creates an incentive for companies who have the ability to control safety at a jobsite to provide a safe place to work as well as appropriate, safe equipment for the workers to use. The law permits a seriously injured worker who is permanently disabled or the family of a deceased worker to recover meaningful compensation and provide them with an opportunity to move on with their lives when their injuries are the result of not being given a safe place to work. This tragic case is a vivid illustration of when this law is essential.

Our thoughts and prayers are with the loved one's of Carlos Moncayo. His death was both tragic, senseless and wholly avoidable. May his family and friends find the strength to move forward in their lives and make peace with this loss.

Block O'Toole & Murphy is a law firm committed to fighting on behalf of construction workers and their families. You may learn more about the firm by reviewing their website at www.blockotoole.com.

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