'Deutsche' Final Score: 2 Dead, None Accountable

Chief Leader - July 12, 2011

by FLORA FAIR

With all four defendants found not guilty of manslaughter charges in the Deutsche Bank building fire that killed two Firefighters in 2007, the fire unions last week demanded that prosecutors go after government officials whose negligence they say helped spur the blaze.

The Manhattan District Attorney's Office considers the case closed. The unions, however, argue that the true culprits have yet to be indicted.

The criminal case ended last week when the last two defendants--an abatement supervisor and his employer, the John Galt Corporation--were acquitted of manslaughter charges by State Supreme Court Justice Rena Uviller. A jury had earlier found two other supervisors not guilty of manslaughter, criminally negligent homicide and reckless endangerment. The only conviction was for a reckless-endangerment misdemeanor against John Galt.

Case Hinged on Standpipe

The charges stemmed from a massive blaze that broke out Aug. 18, 2007 in the condemned Deutsche Bank tower, engulfing it in thick smoke that overcame Firefighters Robert Beddia and Joseph Graffagnino as they tried to retreat. Both men perished in the fire. Prosecutors had argued that the men in charge of abatement and deconstruction at the site knew the significance of the building's standpipe, yet chose to partially dismantle it in an effort to save time. This led to a partial collapse of the pipe, and Firefighters were unable as a result to get water on the deadly fire.

In a July 7 letter to Manhattan DA Cyrus R. Vance, Uniformed Fire Officers Association President Alexander Hagan asked that evidence in the case be revisited--specifically, an August 2007 warning to the Lower Manhattan Development Corporation from its construction consultant URS, which called the building "an accident waiting to happen" and said that Bovis should not be trusted to ensure the building's safety.

The Uniformed Firefighters Association struck a similar tone, with President Steve Cassidy saying, "The verdict confirms our long-held belief that the wrong people were on trial."

A Dead Issue?

At this point, only the unions are talking. The Fire Department had no comment on the case; the DA's Office said that it considered the case closed and would no longer be commenting on it. Attorney Avi Schick, who was head of the LMDC at the time and received memos warning of safety concerns as recently as a few months before the fire, refused to answer any questions and referred this newspaper to LMDC spokesman John DeLibero, who didn't return a call. Nor did former Deputy Mayor Daniel Doctoroff, now head of Bloomberg LP, or the city's Law Department respond in time for publication.

Target White Collars

Considering that the DA's report was released in 2008, the story is old news. The Village Voice reported in July 2009 on the string of ignored safety warnings, inspection failures and back-scratching that created the perfect storm for the fire, citing the memo Mr. Hagan believes should make LMDC accountable.

"The people indicted up to this point had blue collars and work shoes, and we want to see the people who made the decision resulting in these wrongful deaths looked at," he said. "There may not be evidence that's worthy of an indictment, but it wasn't even looked at."

His letter to the DA goes on, "The UFOA believes that the repeated violations of the LMDC's own Emergency Action Plan, taken together with the LMDC's failure to heed a stern warning from its consultant company, adds up to criminal negligence by those persons responsible for all those many failures." It's unclear, however, if the consultant's memo was used to further investigate LMDC for possible negligence.

In Dark About Earlier Fires

Then-DA Robert M. Morgenthau, whose office conducted the probe, cited nine fires in the building for which the FDNY was never called or notified, despite specific instructions in the building's Emergency Action Plan, which, as Mr. Hagan put it, "repeatedly demanded that any fire or explosion in the building must be reported to 911 and the FDNY"--a provision added at the insistence of the FDNY. Seven of the fires he mentioned occurred between the beginning of demolition and the URS warning to the LMDC, with two more breaking out in the two weeks leading up to the fatal fire.

Gilbane, not Bovis, was the original contractor for the building. It drafted the original Emergency Action Plan, which was sent to the city's Office of Emergency Management. Officials at OEM in turn warned that the FDNY wouldn't permit Gilbane to handle fires itself, as was written in the original draft. The revised EAP was sent to FDNY officials who agreed that all fires must be called in to 911. The revised plan and FDNY memos were sent to then-Chief of Operations Salvatore Cassano, but the memo stopped there. According to the DA's report, "the memos did not result in the creation of a special firefighting plan for, or inspections of, the Deutsche Bank building."

Paid More to Speed Work

For mayoral and LMDC officials, time was of the essence on the abatement and deconstruction job at 130 Liberty St. The December 2007 deadline was not random, but marked the end of an option for JP Morgan Chase to build a new headquarters on the site--a profitable venture for the LMDC. In January 2007, workers for Bovis and its subcontractor John Galt walked off the job, saying they were not getting enough money to meet the tight deadline. They were eventually guaranteed more money as an incentive.

Time also factored into the decision to let the LMDC simultaneously abate and deconstruct the building. According to Mr. Morgenthau's report, such an allowance for a "high-rise building in a dense residential and commercial neighborhood had never been done before in New York City."

When the blaze broke out, contractors at the site told firefighters that the standpipe was working. They tried pumping water into the building via two different trucks, but that water simply flowed into the basement. As a result of the broken standpipe, it took Firefighters more than an hour after they initially entered the building to get water inside. But by then, it was too late for Mr. Beddia and Mr. Graffagnino, who collapsed on the 14th floor while trying to escape from the smoke.

Faulted FDNY, Buildings Dept.

Mr. Morgenthau concluded his report by placing blame on city agencies, including the FDNY and the Department of Buildings, for not following up with regular inspections, saying that "FDNY officers knew that fire companies throughout the City were not inspecting buildings under construction and demolition with sufficient regularity." He opted not to indict them or the Bloomberg administration because of legal obstacles to a successful prosecution.

In response to the DA's criticism of city agencies, Mayor Bloomberg announced in December 2008 that he convened a working group to strengthen inspection and enforcement, and that the city was implementing its 33 recommendations. The Mayor also mentioned an agreement with the DA's Office that created a civilian inspection unit within the FDNY focused on construction, demolition and abatement sites.

What About LMDC?

Though Mr. Morgenthau said "everyone failed at the Deutsche Bank building," what's missing from the then-DA's conclusion, union officials say, is a specific mention of the LMDC's culpability. In addition to the FDNY and DOB, he blames contractors for dismantling the standpipe with "catastrophic results." And while he said all these failures contributed to the deaths of both Firefighters, he did not point a finger at the LMDC for ignoring warnings about site safety or repeatedly flouting the EAP.

In response to the last of the not-guilty verdicts, Mr. Hagan said that the jury and judge understood that those on trial were not the individuals ultimately responsible for the fire.

"The Lower Manhattan Development Corporation--that's the hot-bed of the decision-making that caused all this trouble," he said.