NY Times - December 22, 2008by WILLIAM K. RASHBAUM and CHARLES V. BAGLI
Prosecutors in Manhattan are expected to announce manslaughter charges on Monday against three construction supervisors and a subcontractor in the deaths of two firefighters who were killed while battling a smoky fire in August 2007 at the Deutsche Bank building in Lower Manhattan, people briefed on the matter said on Sunday.
But New York City, whose numerous failures in safeguarding the building, which was damaged on Sept. 11, 2001, were revealed soon after the fire and then exposed in painstaking detail during a 16-month investigation, will not be indicted. That decision was based on the significant legal obstacles that would be presented by charging the city, the people briefed on the matter said.
Bovis Lend Lease, the construction management company that hired the subcontractor and was responsible for the work at the former bank tower, also will not be indicted. Bovis was overseeing demolition and asbestos removal at the 41-story building.
Details about the case were provided by people who said they could not be identified because the charges had not been made public. The charges are expected to be announced at a news conference on Monday by Robert M. Morgenthau, the Manhattan district attorney.
Two of the construction supervisors against whom charges are expected to be announced on Monday are Mitchell Alvo, an executive of the subcontractor, the John Galt Corporation; and Jeffrey Melofchik, a site safety supervisor for Bovis, people briefed on the matter said.
Their lawyers, Susan Hoffinger and Edward J. Little, respectively, declined to comment, and a lawyer for the Galt company could not be reached. The name of the third person expected to be charged, identified by one person briefed on the matter as a Galt foreman, could not be determined on Sunday.
The case has been steeped in emotion since the start, when the two firefighters, Robert Beddia and Joseph Graffagnino, died inside the partly deconstructed building. The loss of the two firefighters inside a building so closely linked to the terrorist attack of 9/11 added to the grief.
And the series of missteps and failures by city officials, state development officials, contractors and others that preceded the fire stoked the anger of the firefighters' families, who believe that they died because of these lapses.
The building's sprinkler system had been dismantled and fire exits were sealed off as part of the demolition and asbestos abatement. It was later learned that a standpipe, designed to carry water to the building's upper floors during a fire, had also been dismantled and that cheap, non-fire-retardant plywood had been used in the deconstruction.
The families of the men, who were briefed by prosecutors on Dec. 8, complained that they felt they would not see justice done - which to them meant charges against the city and Bovis. They were also initially offended at an offer by Bovis, which was negotiating with prosecutors, that family lawyers criticized at the time as an effort by the company to buy its way out of the case.
But since then, the family of Firefighter Beddia has reached a preliminary agreement under which it would accept a $5 million payment from Bovis provided it not be barred from pursuing a civil lawsuit against Bovis, the city or the John Galt Corporation.
The Galt company, which Bovis had hired for the demolition and asbestos abatement of the building with the approval of state development officials, was created by the stitching together of executives and workers from two companies that had no experience deconstructing large buildings.
The families have said that they plan to pursue a civil lawsuit in an effort to get more answers about what happened that day and prevent other firefighters from dying in similar circumstances.
The father of Firefighter Graffagnino, Joseph A. Graffagnino, however, said on Sunday that he had no plans to sign such an agreement. Mr. Graffagnino said he considered it a bribe.
The investigation made clear that required inspections were never done by the city's Buildings and Fire Departments.
The city avoided indictment in large part because of a legal concept known as sovereign immunity, which holds a municipality immune from prosecution absent a specific waiver.
But under an agreement with prosecutors, the Bloomberg administration will acknowledge its failures and set up a new division within the Fire Department, financed with several million dollars and staffed with about 25 civilians. Its mission will be to inspect high-rise buildings under construction or demolition, people briefed on the matter said.
Mr. Morgenthau's office has also reached an agreement with Bovis that includes the $5 million payment, which one person briefed on the matter called a memorial payment. Discussions with Bovis also included the possibility of the appointment of a monitor to oversee its work, but the outcome of that portion of the talks was unclear on Sunday night. A spokeswoman for Bovis declined to comment.
The manslaughter charges, voted on by a grand jury that has been hearing evidence in the case for about a year, are just one stage of the inquiry, people involved in the matter have said. Another panel is hearing evidence about possible fraud involving Galt as well as the role of the Lower Manhattan Development Corporation, which owns the Deutsche Bank building, in hiring Galt, a decision made despite the objections of city investigators.
Al Baker contributed reporting.