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Harco Lawyers Blame Subcontractor for Worker's Death in Meatpacking

 The construction site at 9-19 Ninth Avenue on April 6, 2015, the day 22-year-old construction worker Carlos Moncayo was crushed to death.
The construction site at 9-19 Ninth Avenue on April 6, 2015, the day 22-year-old construction worker Carlos Moncayo was crushed to death.
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Manhattan District Attorney's Office

CIVIC CENTER — A construction foreman shouldn't be blamed for the death of a worker buried alive at a Meatpacking District construction site — because it wasn't his job to tell his subcontractor "how to do their work," his lawyer said on the first day of his manslaughter trial Wednesday.

Harco Construction and foreman Alfonso Prestia were charged last year for the death of 22-year-old Carlos Moncayo along with subcontractor Sky Materials Corp. and its foreman Wilmer Cueva. Moncayo was crushed to death in a 14-foot excavated hole at 9-19 Ninth Ave. in the Meatpacking District that caved because it had not been adequately reinforced.

The site, formerly the home of acclaimed restaurant Pastis, is being redeveloped into a Restoration Hardware flagship store by developers William Gottlieb Real Estate and Aurora Capital Associates.

Harco, Prestia, Sky and Cueva were indicted on charges of manslaughter, criminally negligent homicide and reckless endangerment by a grand jury after a joint investigation by the Manhattan District Attorney and the city's Department of Investigation.

Emails and witnesses indicated that Prestia, Cueva and higher-ups at Harco ignored repeated warnings that the site was unsafe from safety inspectors hired to oversee it as well as from a Harco employee who was fired after his warnings became more insistent, officials said.

But in court on Wednesday, Prestia and Harco's attorney argued that Sky was subcontracted for the excavation, and therefore it was Cueva and Sky who should be held responsible for Moncayo's death. (Cueva and Sky's separate trial has not yet begun.)

Attorney Ron Fischetti insisted Prestia and Harco could not be held accountable for Cueva's actions because he was an employee of Sky, and it was not within their rights as general contractor to fire Sky's employees or "tell them how to do their work."

Fischetti added that the inspectors hired to oversee the safety of the site, who have not been held accountable by DOI or the DA's office for the dangerous conditions that apparently persisted at the site, never included any of their safety concerns in any of their mandatory daily written reports to Harco.

And, he said, the fact that Prestia is "not a supervisor [and] not a corporate executive" means Harco as a company did nothing wrong.

Walking into the elevator after the court adjourned for lunch, Fischetti punched Prestia gently in the arm.

"See, what did I tell you," he said. "Did I throw you under the bus?"

Assistant District Attorney Diana Florence said on Monday that she expects to call upwards of 20 witnesses over the course of the trial.

The first witness called on Wednesday morning was 6th Precinct Detective Ryan Glas, who took some of the photos at the construction site when he reported to the scene moments after Moncayo's death. During the afternoon, the DOI Director of Digital Forensics testified about the photos and emails he pulled off of phones and computers for the trial, though noted that when he executed a search warrant at Harco's Canal Street office, there were no emails at all on the company's server.

Members of Moncayo's family sat quietly throughout the trial, watching intently as the attorneys sparred. At one point, after a slew of photos were displayed of the construction site at the time that Moncayo was crushed and immediately after, showing the efforts to dig him out, an elderly female family member of Moncayo's began to cry.