In April 2015, Carlos Moncayo, a 22-year-old Queens resident, went to work at a construction site on Ninth Avenue, in the Meatpacking District. That day, he never came home.
Tragically, he was buried alive when a 14-foot trench that had not been shored up collapsed. There was persuasive evidence that showed this accident could have been easily prevented; the two construction managers of the site had been warned multiple times in the months leading up to the accident-by private inspectors and their employees-that the trenches on their site went deeper than the typical five feet that federal and city regulations allow. If a trench goes deeper than five feet, it legally must be shored up so that the walls don’t cave in.
Alfonso Prestia and Wilmer Cueva, the two construction managers, clearly did not pay attention to these warnings, and both the men and the construction companies they worked for were charged with second-degree manslaughter, criminally negligent homicide, and reckless endangerment. Years after this accident, we know the outcome of this case: Prestia was sentenced to 500 hours of community service, Cueva received a sentence of one to three years in state prison, and each construction company was issued a $10,000 fine by Justice A. Kirke Bartley Jr., of Manhattan’s State Supreme Court. Their collective negligence led to an innocent man’s death. $10,000 is not adequate penance for such a severe consequence.
Why is this number so low? By law, the maximum amount a corporate entity can be fined for criminal conduct is $10,000, which is an incredibly small sum to a large construction company. Although Prestia and Cueva received their own punishments, the companies they were working for were just as complicit in Moncayo’s death; however, they could legally only be fined $10,000 for their appalling crime. There is a solution for this injustice: Carlos’ Law. Introduced after this terrible accident and named in memory of the victim, this law would raise the maximum penalty for corporations found criminally liable for worker deaths to $500,000. It has not yet been signed into law-despite it passing the New York State Assembly twice-due to a Republican-controlled Senate. But it is possible that this year, Carlos’ Law has a chance, since there is no longer a partisan barrier within the state government.
The New York Committee for Occupational Safety and Health (NYCOSH) fully supports Carlos’ Law. In their recently released 2020 Deadly Skyline Report-an annual report on construction fatalities in New York State-one of their recommendations is to pass Carlos’ Law as a way to further protect construction workers and prevent them from injustices after involvement in an accident.
The report states that workers’ deaths have long been able to be dismissed as “unfortunate accidents,” especially by contractors who know that they will only have to pay a $10,000 fine in the event of a criminal trial. NYCOSH is urging the passage of this law, even with the moderate increase in average fines for construction accident employers in non-criminal fatality cases. The report states that the average fine issued by OSHA in 2018 was $25,178, which is a 16.6 percent increase from the average fine in 2017.
Although it is positive that accident fines are slowly increasing, $25,178 is still such a minor fine that many employers don’t believe there are serious consequences if they overlook the proper safety precautions. More needs to be done.
As construction accident lawyers, we at Block O’Toole & Murphy see many cases every day that we know could have been prevented if there were stronger protections in place for workers. Carlos’ Law would provide a much better incentive for construction contractors and employers to be more vigilant and take better care of their employees, preventing unnecessary deaths. Although we would prefer there be fewer construction accidents, when they do happen, we are here to help.
If you or someone you know has been injured or lost their life in a construction accident that could have been prevented, you may be legally entitled to compensation for your struggles. Call us at 212-736-5300 or fill out our contact form to speak to a qualified construction accident attorney today.