Dep’t of Buildings v. Reilly OATH Index No. 1116/17 (Apr. 10, 2018), adopted, Comm’r Dec. (May 1, 2018), appended

Petitioner established that respondent failed to comply with rules and regulations and the manufacturer’s instructions regarding the proper stowage of the crane in anticipation of a wind event. That the stowage plan provided improper guidance and was not achievable was not a defense where respondent was aware of the flaw and worked in the absence of a corrected plan. Respondent’s failure to lower the crane in advance of a wind event, which led to its collapse the following day, constituted negligence. But petitioner failed to establish that on the morning of its collapse, respondent lowered the boom to 72 degrees and the jib to 49 degrees, making it unstable and causing its collapse. For respondent’s negligence, ALJ recommends revocation of his hoist machine operator’s license.

Commissioner adopted the finding that respondent’s conduct was negligent, but disagreed that respondent was not responsible for making the crane unstable and causing its ultimate collapse. Commissioner imposed the penalty of license revocation. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - KEVIN REILLY Respondent ______

REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge This proceeding was referred pursuant to section 28-401.19 of the New York City Administrative Code (“AC”). Petitioner, the Department of Buildings (“DOB” or “Petitioner”), alleged that on February 4, 2016, respondent, Kevin Reilly (“respondent” or “operator”), a licensed hoist machine operator, left a crane boomed up overnight at 60 Hudson Street in lower Manhattan, New York (“60 Hudson Street” or “the site”), and failed to follow the manufacturer’s instructions to lay down the boom and jib of the crane when wind speeds of 15.66 miles per hour - 2 - were anticipated, or otherwise fasten the boom securely against displacement. Such failure, it asserted, violated section 3301.1.3 of the Building Code (“BC”) and sections 3319-01(p)(2)(iii), (vi) and (x) of title 1 of the Rules of the City of New York (“RCNY”). DOB further alleged that on February 5, 2016, respondent boomed the crane down at an angle that made the crane unstable and caused it to collapse. Accordingly, DOB charged respondent with: (1) endangering the public safety and welfare; (2) demonstrating negligence, incompetence, lack of knowledge or disregard for the AC and related laws and rules; and (3) failing to comply with the requirements of the AC and any lawfully-enacted requirements by DOB’s Commissioner, in violation of sections 28-401.19 (11), (6) and (7), respectively, of the AC (ALJ Ex. 1). Respondent filed an answer blaming DOB and MRA Engineering (“MRA”) and Galasso Trucking and Rigging Incorporated (“Galasso”), whose plans for the job were approved by DOB’s plan examiner. Respondent claimed that the actions of MRA, Galasso and DOB set in motion the chain of events that ultimately led to the crane collapse and that those entities collectively violated section 28-401.19(11)1 of the AC. Respondent further asserted that section 3319-01(p)(2)(vi) of title 1 of the RCNY and section 22.2.6 of the AC Reference Standard (“RS”) 19, are inapplicable in large part to contemporary cranes and derricks (ALJ Ex. 2). A 10-day trial commenced on June 26 and concluded on October 31, 2017. Petitioner presented documentary evidence and the testimony of DOB Inspector Daniel Meyer, Ashraf Omran, DOB’s Executive Director of its Cranes and Derricks division, and expert witnesses Frank Hegan and Manfred Kohler of Crane Tech Solutions (“CTS”). Respondent testified on his own behalf and presented the testimony of Jeff Holmes and Steven Miller as expert witnesses, and Steve Mazzacco, the oiler for the crane, as well as documentary evidence. The parties made oral summations which they supplemented with closing memoranda. Following the receipt of the closing memoranda, the record closed on November 28, 2017. For the following reasons, I find that as the crane’s operator, respondent was ultimately responsible for its stowage, and that he failed to lay the crane down on the eve of anticipated severe weather conditions in violation of applicable laws and the manufacturer’s instructions. While the evidence established that MRA and Galasso erred by filing plans with DOB which

1 Section 28-401.19(11) of the AC empowers the Buildings Commissioner to suspend or revoke a license or certificate of competence and/or to impose a monetary fine for each finding of violation, and/or to order a licensee to repair damage resulting from any act or omission for, among other things, “Engaging or assisting in any act that endangers the public safety and welfare” Admin. Code § 28-401.19(11) (Lexis 2018). - 3 - contained a stowage plan for the crane that was unachievable, respondent was aware of the inadequacy of the stowage plan at the onset of the job and yet proceeded to operate the crane. But neither the deficiency of the stowage plan, MRA’s failure to obtain permits for street closures for laying the crane down on each of the nights covered by the job plan, nor DOB’s plan examiner’s failure to recognize the job application’s obvious shortcomings, were sufficient to overcome respondent’s failure to lay the crane down on the eve of a wind event. It was respondent’s license which was implicated from the moment that he touched the crane’s levers and as such, he bore the responsibility of deciding whether or not to operate the crane. Accordingly, I find that respondent’s failure to lay the crane down when heavy winds were anticipated was negligent and was in disregard of section 3301.1.3 of the BC and sections 3319-01(p)(2)(iii), (vi) and (x) of title 1 of the RCNY, and section 4.23.2 of the crane manufacturer’s instructions. Petitioner did not establish that on the day of the accident, respondent lowered the boom to a 72-degree angle, and the jib, to a 49-degree angle, which made it unstable and ultimately caused its collapse. Nevertheless, in view of my findings, I recommend that respondent’s license be revoked.

ANALYSIS Introduction Respondent holds a New York State (“NYS”) license to operate cranes of unlimited configurations, a class B NYC operator’s license and approximately five endorsements from the National Commission for the Certification of Crane Operators (“NCCCO”). Respondent has maintained his NYS license since 1990, and the NYC license since 1999 or 2000 (Tr. 1132-33). Respondent operates Bay Crane’s equipment but is not a Bay Crane employee (Tr. 1220; Pet. Ex. 15 at 3, 8). For the job at 60 Hudson Street, he was retained by Galasso and learned of his assignment on January 29, 2016, the day before the job started. Galasso was the contractor, crane user and site safety coordinator, and paid respondent’s salary (Tr. 1136-39). The crane selected for the job was a Liebherr Crawler Model Number LR 13002 (LR 1300), which was configured with a main boom of 194 feet elevated at an angle of 80 degrees

2 The LR 1300 is a crawler crane that runs on tracks which have metal cleats that rotate. Located above the crawler is a machine deck with a carbody counterweight and a rear counterweight. Rising upward from the machine deck is the heel section of the boom, the boom sections and the boom head or boom tip. The luffing jib is attached to the - 4 - from the ground, and a jib of 322 to 371 feet (Pet. Exs. 2, 3). It was a newer model crane and was the largest Liebherr crane that Galasso had ever used in New York City at the time (Pet. Ex. 17 at 13-20, 25). The crane was equipped with a computer which records when the crane’s engine is started or shut down, captures the boom angle and the radius, and shows the level of utilization of the crane (Resp. Ex. P). Respondent was generally familiar with the LR 1300, but he had never previously operated one with this crane’s configuration and did not believe that one with such a configuration had ever before been used in New York City (Tr. 1213, 1218-19; Pet. Ex. 15 at 9- 10, 13). On February 5, 2016, respondent was employed by Galasso and operating the crane at 60 Hudson Street when it collapsed, killing a pedestrian, injuring others, and causing significant property damage (Tr. 44-47, 59; Pet. Ex. 5A). Petitioner charged respondent with leaving the crane boomed up overnight, failing to follow the manufacturer’s instructions to lay down the boom and jib of the crane when wind speeds of 15.66 miles per hour or more were anticipated, or otherwise fasten the boom securely against displacement, and lowering the boom and jib to an angle that made the crane unstable and caused it to collapse in violation of applicable laws, rules and regulations (ALJ Ex. 1). A finding that respondent’s actions were the primary cause of the crane’s collapse is not required to find liability in this licensing proceeding. See Dep’t of Buildings v. Geer, OATH Index No. 1288/13 at 2-3 (Dec. 18, 2013), adopted, Comm’r Dec. (Dec. 20, 2013).

The Job The crane operations at 60 Hudson Street were initiated by licensed engineer Neil Greenblatt of MRA and master rigger Greg Galasso, with the submission of a Crane Notice (“CN”) package to DOB on December 3, 2015. The CN indicated that the crane was required for the installation of generators and cooling towers at a 25-story building. It also contained a letter from Mr. Greenblatt advising DOB that he had visited the site and that the crane would not be operated during periods of high wind. On the on-site inspection application form included boom (Tr. 192-93). At one end of the machine deck are a winch and a round drum which holds steel rope that activates the upward and downward movements of the jib and the boom. When the steel rope is unspooled, the boom and jib are lowered and when it is tightened, the reverse occurs. A hoist line that extends from the mid- carbody to the boom tip allows the hook at the boom tip to pick up and move loads (Hegan: Tr. 189-94; Kohler: Tr. 732, 734-35; Pet. Ex. 14 at DOB000011, Fig. 1 (see Appendix 1 to this report)). - 5 - with the CN, Mr. Galasso signed the Crane Safety Coordinator’s Statement that he would be responsible for the control of vehicular and pedestrian traffic within the designated hoist areas. Galasso workers Brent Graham, Karl Deans and Steve Bland were identified as designated crane safety coordinators. The CN package also included: requests from Galasso for after-hours inspections on January 30, 2016 and February 4, 2016; an after-hours work permit application for January 30 and 31, and February 4, 20163; a letter from the Metropolitan Transportation Authority (“MTA”) that it had received and reviewed an application and drawings from MRA and Mr. Greenblatt, of work to be performed at 60 Hudson Street and the possible adverse effects of the work on the New York City Transit facilities; and an MTA approval letter (Meyer: Tr. 22- 23, 26-27, 90-92; Hegan: Tr. 187-88; Pet. Ex. 2). DOB approved the job on January 12, 2016. The crane was assembled on January 30, 2016, in the presence of Daniel Meyer, an assistant chief inspector in DOB’s Cranes and Derricks Unit. Inspector Meyer is a supervising inspector with four years’ experience in on-site crane inspections, audits, and investigation of complaints and incidents (Tr. 16-18, 66-71). He provided the following overview of on-site inspections conducted by DOB, which are required for cranes with booms in excess of 250 feet. The inspector: reviews drawings; inspects the crane’s foundation; inspects the parts that are integral to the crane’s assembly to ensure that they are not damaged; and supervises the assembly of the crane. The inspector also ensures that anyone who is required for the job has proper certifications and licenses. In addition, the inspector reviews the crane registration and its certificate of operation. Once the crane has been fully assembled, the inspector conducts all required safety checks, including a check of the operating system, to make sure that the crane is functioning properly (Tr. 18-19, 28). Prior to the assembly of the LR 1300 at 60 Hudson Street, Inspector Meyer reviewed on- site the approved plans and drawings which MRA and Galasso had submitted to DOB (Tr. 29- 30, 72-75, 77; Pet. Ex. 3). One drawing showed the positioning of the crane on Worth Street between West Broadway and Hudson Street (Pet. Ex. 3 at ER-1). Another displayed two elevations of the jib, one at 322 feet and the other at its full extension of 371 feet, showing the crane’s working range, its clearances for nearby buildings and the setbacks for the building, to

3 The application revealed that the variance was required to hoist mechanical equipment and noted that assembly of the crane was to be undertaken under the supervision of a licensed master rigger (Pet. Ex. 2). - 6 - establish that there would be no obstructions while the crane was operating (Tr. 32-33; Pet. Ex. 3 at ER-2). A drawing of the assembly and dismantling plan for the crane required those activities to be supervised by a licensed master rigger, while a flagman would stop pedestrians and vehicles when overhead lifting was being done, unless Department of Transportation (“DOT”) permitted full sidewalk closing. It also showed that the crane was to be set on outriggers and displayed the boom angles (Pet. Ex. 3 at AS-1). Inspector Meyer called the drawing his “build layout” as it demonstrated the direction in which the crane was to be assembled. To give a sense of the enormity of the crane, he noted that its assembly was spread over approximately two City blocks (Tr. 34-35). Drawings included with the plans included the following notes:  Contractor to verify all dimensions and site conditions prior to commencing work. Any errors, omissions or unusual conditions to be reported to the office of MRA Engineering immediately.

 Cranes to be stowed overnight or in severe weather conditions as per manufacturers recommended procedure found in the operators crane manual.

 Crane operations are to be conducted in accordance with A.N.S.I./A.S.M.E. B30.5a – latest edition, appropriate OSHA rules and R.S. 19-2 of the New York City Building Code.

(Pet. Ex. 3 at ER-3 of 3) (emphasis added in plans). Inspector Meyer clarified that in spite of references to the standard established by the American Society of Mechanical Engineers (“ASME”), reliance on those requirements would be inappropriate if the BC requirements were more stringent (Tr. 116). A drawing of the stowage plan displayed the crane in a jack-knifed position with the jib directed towards Hudson Street, a fact which Inspector Meyer admittedly overlooked during the assembly inspection but which he recognized would place the jib of the crane into a residential building if it were strictly followed (Tr. 81-84; Pet. Ex. 3 at SP-1). He acknowledged that no angles or dimensions were displayed on the stowage plan but emphasized that it specifically called for reference to the manufacturer’s recommended procedure when the crane was to be jack-knifed4 (Tr. 34, 76-78, 87).

4 The stow plan showed the crane in a jack-knifed position with the luffing jib grounded towards Hudson Street. Within the boom and the jib, the engineer inserted a dialog box which read as follows: “CRANE TO BE STOWED - 7 -

While reviewing the drawings, Inspector Meyer looked at the centerline location of the crane and the pick points, which are the points from which loads would be picked up by the crane and where they would be placed. He also looked for possible setbacks on the building, read the notes on the plans, reviewed the configuration for the setup of the crane and checked for street closing barricades (Tr. 30-31). The manual in the cab of the crane provided that: If during planning it is noticed that the boom cannot be set down completely at the site due to a lack of space and there is danger of a storm: Contact the manufacturer in time to arrange special protective measures against storm damage.

(Tr. 109-11; Pet. Ex. 14 at F-318). The build commenced around 4:00 p.m. on January 30, 2016, and Inspector Meyer interacted constantly with respondent who was in the cab of the crane. He had respondent boom the crane up and down and made sure that the high and low boom limits were properly set. In addition, respondent checked the limits on the jib, and ensured that the load charts matched the computer readings. Inspector Meyer was concerned about whether the anemometer, which is located at the tip of the crane and measures wind speed, was working properly. The anemometer readings were displayed on the computer in the cab of the crane. After his concern was assuaged, the build was completed around 4:00 a.m. on January 31, 2016. At the end of his inspection, Inspector Meyer reminded respondent that the maximum wind speed for this particular crane configuration was 15 miles per hour, but did not give respondent instructions as to stowage, should the wind speeds approach that number. He completed his CN inspection report on a computer tablet at the site and signed off on it at or around 8:23 a.m. on the same day, which permitted crane operations to commence (Tr. 35-41, 124-26; Pet. Ex. 4). When Inspector Meyer left the site on January 31, 2016, the crane was boomed up. He was uncertain whether it was boomed down after operations that day and it was not his understanding that the boom was to be laid down each night. He stated that leaving the crane boomed up overnight would be safe if weather conditions permitted proper stowage, and it would meet with DOB approval. Inspector Meyer further noted that following the initial assembly inspection, DOB would only inspect the crane if it received a complaint (Tr. 96-98,

(JACK-KNIFE) IN SEVERE WEATHER CONDITIONS AS PER MANUFACTURERS RECOMMENDED PROCEDURE” (Pet. Ex. 3 at SP-1 of 1). - 8 -

133, 137-38). He never discussed with respondent the manufacturer’s instructions with respect to laying down the crane. Nor did he check the manual for such instructions. And respondent did not express any concerns about being unable to comply with the plans or the manufacturer’s instructions (Tr. 138-39). Inspector Meyer said that he would occasionally refer to the manual if there was a question about wire rope sizes or about the crane configuration (Tr. 78-80, 87-90, 94- 96, 135-37). Early on February 4, 2016, Inspector Meyer visited the work site because DOB inspectors Richard Hamilton and Ignacio Jaquan were conducting a reconfiguration inspection from the previous evening. The inspection involved laying the boom down, taking it apart and adding 50 feet to the length of the jib. After the inspectors assured him that all was well, Inspector Meyer went to his office (Tr. 41-42, 98-99). On the morning of February 5, 2016, while in a meeting at DOB, Inspector Meyer received a report about an accident with the crane. He arrived at the scene sometime after 8:40 a.m. and saw the crane lying in the street and the body of a deceased pedestrian. Inspector Meyer also observed about one dozen damaged vehicles and several severely damaged buildings. He found respondent speaking with another person (Tr. 42-43). Respondent had crawled out from under the crane and had sustained a minor injury to his hand but was in “relatively good shape” (Tr. 48-49, 127). Inspector Meyer took photographs of the crane after arriving at the site (Tr. 44-48; Pet. Exs. 5A, B, C). Since there was a total crane collapse, all the defective components had to be listed to prevent the crane or any of its parts from being placed back into circulation (Tr. 59-62; Pet. Ex. 9). Inspector Meyer issued a Stop Work Order which applies to any number of issues such as: deficiency in the plans or drawings; crane setup conformity; and unsafe building or rigging (Tr. 63-65; Pet. Ex. 10). Almost immediately after the accident, Inspector Meyer interviewed respondent in an office near the site. Police officers and other investigators were present. Inspector Meyer memorialized respondent’s statement as well as a later-amended statement (Tr. 49-50; Pet. Ex. 6). In his first statement, respondent related: Observing wind speeds gusted [sic] to 25 mph. 10-15 mph sustained wind speed. Informed crew crane must be laid down. Operator swung machine to the East 180°. Crane facing West at time starting [sic] work. Main parked overnight at 80° and started - 9 -

luffing down with main @ 82°. Proceeding luffing down to 45°. First backed up and blocked up CATS. Luffing boom @ 45°. Noticed machine tilting forward. Tried to luff up to recover. The crane continued tilting forward until hit the ground.

(Tr. 51-52; Pet. Ex. 6). Respondent signed the first statement at 9:30 a.m. At some later time, he gave an amended statement, which Inspector Meyer memorialized on the same page as respondent’s initial statement, as follows: Main boom parked at 80° overnight. Boom up to 88°. Then swung crane around. Then proceed to luff down. Low cutout approx. 47°. Then switched to set up mode as per procedure.

(Tr. 52). On the same morning, Inspector Meyer also took the following signed statement from Steve Mazzacco, the oiler for the crane: Arrived at 7:00 a.m. Meet with Galasso Trucking. Checked annomonitor [sic]. Made the call. Cannot work. Decided to jack- knife crane because of wind and then lay it flat. Before 8:00 a.m., rotate crane to East as per drawing. Crawl back and block the toes. Galasso’s crew are closing the streets with flagmen. Felt the gust of wind. Saw the boom move forward, very fast forward. You saw the boom come down the middle of street. Signals through, signals radio. Joe Valenza was signal man. Boom hits street.

(Tr. 52-56; Pet. Ex. 7). The inspector did not dispute that on the day of the accident, cars were parked in an area where the boom was intended to be laid down, that the street should have been closed to pedestrians and traffic, and that it was not the crane operator’s responsibility to have cleared the designated hoist areas of pedestrians or vehicles. Nor did he dispute that the crane operator could not lower a crane of the magnitude of the LR 1300 by himself. It required coordination with the master rigger and signalmen and reliance on the approved plans (Tr. 47, 92-94, 114-15, 126). Brent Graham is a rigger foreman for Galasso Trucking, where he has worked since 1999 (Pet. Ex. 16 at 3-4). Neither he nor master rigger Greg Galasso, whose firm was the contractor for the job, testified before this tribunal. Following the crane’s collapse, both were interviewed on June 14, 2016, by DOB’s Special Investigations Unit (“BSIU”), and transcripts of their interviews were submitted as petitioner’s exhibits 16 and 17, respectively. For the 60 Hudson Street job, Mr. Graham met with Bay Crane’s mechanic, MRA’s engineers and Joe Valenza, provided on-site assistance with the engineering plans and advised - 10 -

Mr. Galasso on what should or should not happen at the site. Mr. Valenza was Graham’s site safety assistant (Pet. Ex. 16 at 7-8, 11, 14-16, 33-34, 69). Mr. Graham informed the BSIU team that site safety meetings were held at the beginning of each day inside the building at the work site and work assignment meetings were held outside. Respondent did not always attend the latter meetings because he was not really permitted to get out of the cab. Tuesday (February 2, 2016) was uneventful. Wednesday (February 3, 2016) started as a normal day but the winds began to pick up, so respondent quickly decided to jack- knife the crane and put it down. Since Mr. Graham did not intend to sit and wait for a phone call authorizing that the crane be brought down, he made the crew stop and re-route traffic and respondent brought the crane down. While it was “pretty successful,” Mr. Graham thought it a “little weird” because the crane landed across a street. The main boom was straight and the headache ball touched down before the crane was jack-knifed. The only issue was the time that it took Mr. Galasso to inform DOB of what had transpired. The job was suspended for the rest of the day and the workers returned later for the rebuild (Pet. Ex. 16 at 18-27). On Thursday morning (February 4, 2016), following a complaint about a buildup of water in the basement of the building at the site, Mr. Graham checked and determined that there was no impact to the crane. His crew secured the area with steel plates and other materials before putting down gravel and pontoons. During that day, Mr. Graham felt intermittent winds of varying strengths so extra precaution was taken with the lifting because he knew what the maximum wind tolerance level for the crane was, having read the manual on when the crane should be jack-knifed (Pet. Ex. 16 at 31-34). Mr. Graham stated that based on reporting from his and the cell phones of his co-workers, gusting winds of 30 plus miles per hour and “all that other stuff” were predicted for Friday. He therefore planned to have all the lifts done on Thursday. Before leaving work, he discussed the impending weather with respondent but “no one ever thought to lay [the crane] down on Thursday or anything like that” and no one believed that the wind would be that “extreme.” Besides, Mr. Graham did not know “any other crane head that comes down constantly. They just stayed up . . . .” (Pet. Ex. 16 at 36-40). On Friday morning, Mr. Graham was “dumbfounded” by the heavy snow. By the time he arrived at the work site, respondent was already “spun around” and “ready to go.” Mr. Graham knew that respondent was monitoring the winds and “stuff like that” (Pet. Ex. 16 at 37-39). When respondent decided to jack-knife the crane that morning, respondent first called Mr. - 11 -

Valenza who in turn informed Mr. Graham. They gathered the workers and flagmen and started preparing to jack-knife. Mr. Graham was standing in the middle of Worth Street between West Broadway and Church Streets when he received the flagmen’s signal that the street had been cleared and pedestrians re-routed. After that, respondent was given the signal to start booming down. The main boom was straight and Mr. Graham could see that the wind was fierce, but respondent was “just booming down like normal.” He looked up and saw the jib being brought down. Then he saw the velocity of the boom change and it started coming down harder, which was “not the way the boom is supposed to come down” and the CATS began to lift. Mr. Graham started to push people and “screamed” for everyone to run before he ran towards West Broadway. Once the crane was down, Mr. Graham ran back to check on respondent whom he found rolling out of the crane. He then went to check on others and saw someone in the street who had perished due to the crane’s collapse. Mr. Graham claimed to have made a video and taken cell phone photographs of the crane “right before we boomed down” to show that there was “so much snow coming down,” but he could not produce them because the phone was broken. He declined DOB’s offer to try and retrieve it. He attributed the crane collapse to the weight of the snow which had accumulated on the boom during the night. Mr. Graham noted that the winds were very strong “in the twenties definitely” when they were positioned to jack- knife the crane (Pet. Ex. 16 at 38, 41-47, 50-53, 55-56, 72-73). Greg Galasso has been a master rigger since 2008. His license, which was issued by DOB, is affiliated with: Galasso Trucking and Rigging; and Galasso Rope Works, Inc. Mr. Galasso is the vice-president of both companies. He stated that during the planning process of a job, his firm considers the type of work that needs to be done and then decides on the crane(s) to be used. Galasso rents cranes from Bay Crane. The LR 1300 was the largest crane he had used on any project but he assessed that it was the only machine capable of handling the job (Pet. Ex. 17 at 2-4, 13-20, 25). About one month before the work started at 60 Hudson Street, Mr. Galasso met with Bay Crane to discuss the job and plans to coordinate with DOT, Transit Authority and the NYPD, to get the requisite permits. He maintained that he “would not submit something to DOB [that he] can never actually do in practice” (Pet. Ex. 17 at 33-35). As an analogy, he stated that he would not ask the city to shut down Times Square for a week because “you just don’t do that” (Pet. Ex. 17 at 32). Rather, he would get feedback from his contacts at various agencies. Id. In terms of - 12 - his interaction with crane operators, he noted that the operators are part of a team and know the objectives of the job. His company does not have complete control over the operator and the equipment so he had no doubt that if he directed an operator to perform a task which was outside the scope of his work, the operator would call his union for approval (Pet. Ex. 17 at 28-30). At the initial build, Mr. Galasso saw the first parts of the crane delivered and checked that the foundation was correct before leaving the site. He left other high-level workers present. When he got home on January 30, 2016, Joe Valenza called to ask whether they should continue with the build because respondent had indicated that he would be unable to make the picks. Mr. Galasso’s testimony corroborated Mr. Graham’s (and later, respondent’s) claims regarding the paper load charts not being in sync with the crane’s computer. He contacted MRA and Bay Crane and was satisfied that Bay Crane would take care of it (Pet. Ex. 17 at 39-50). On Monday, Mr. Galasso visited the work site and spoke with Mr. Valenza and respondent. All appeared to be going well. He did not visit the site on Tuesday but was in communication with his workers and was pleased with the progress of the work. On Wednesday, Mr. Galasso was about five minutes away from the site when Mr. Valenza called to inform him that the winds had intensified and respondent wanted to jack-knife the crane. He replied “Okay” because they had made contingency plans by submitting for DOB’s approval, a drawing of the crane in a jack-knifed position. At that point in the interview, Mr. Galasso excused himself. Upon his return, he stated that it was not a situation in which his permission was being sought. In any event, when he reached the site, the crane was already stowed. He took photos and texted them to DOT “before anybody else finds out that we had – had to stow the crane.” He also informed Frank Damiani at DOB, but Damiani was more concerned about the planned reconfiguration that night (Pet. Ex. 17 at 62, 67-72). Mr. Galasso admitted that he was upset because he was not given sufficient advance notice before the crane was jack-knifed so that he could notify all the necessary agencies. At the same time, he insisted that he expected Mr. Valenza to make decisions and not seek his permission. During the interview, reference was made to an e-mail advising that due to the weather no work would be done the following day. But Mr. Galasso wanted respondent to come to work and stay with the crane. He assumed that 40 miles per hour was the crane’s wind tolerance level before it needed to be jack-knifed and denied that he had previously seen documents from the crane’s manual as to when the crane was required to be laid down. Mr. - 13 -

Galasso claimed that he relied on Bay Crane for advice and had told them that if the crane had to be laid down, it would be done. When shown the stowage plan with the crane jack-knifed towards Hudson Street, he acknowledged that there was insufficient room to do so. Mr. Galasso further claimed that it had been raised in meetings with DOB and DOT and it was always the intention to jack-knife the crane over West Broadway. He did not think that anyone had even realized that the drawing showed the crane pointing towards Hudson Street. But in any event, DOT was pleased with how the crane had been jack-knifed (Pet. Ex. 17 at 62, 72-88, 107-08). The reconfiguration of the boom went ahead on Wednesday night. On Thursday morning, Mr. Galasso was notified of water coming into the building at the job site. After a number of people, including the building engineers, visited the site and Mr. Galasso had spoken with respondent and Mr. Mazzacco, the situation became stable and work continued. A few picks were saved for Friday. Mr. Galasso denied that he participated in any meetings or spoke with anyone on Thursday evening regarding Friday’s weather (Pet. Ex. 17 at 91-106, 109). On Friday morning, Mr. Galasso received a text from Mr. Graham that the winds were howling, which he interpreted to mean that respondent was likely to jack-knife the crane again. He asked to be advised so he could make the necessary phone calls. Soon after, Mr. Valenza called to inform him that they were going to boom the crane down. At some point, Glen Haskell, his safety director, notified him of the crane’s collapse and asked him to come to the site (Pet. Ex. 17 at 109-12). Mr. Galasso testified that the winds were very strong and opined that realizing this, respondent must have swung the crane around and started to boom down, and was hit with a large gust of wind that “kind of got him late that he couldn’t recover from and he went over” (Pet. Ex. 17 at 120-21). Immediately following the crane collapse, DOB retained CTS to investigate and uncover the root cause of the crane’s collapse.

DOB’s Experts CTS has been in business for approximately 12 years. It inspects and maintains cranes, and sells small, trailer-mounted mobile cranes, none of which have the capacity of the LR 1300. Its president, Frank Hegan, is not a licensed crane operator. He holds a Bachelor’s degree in Finance and a Master of Business Administration and is a strategist who develops business plans for the company. Before CTS, Mr. Hegan was the chief financial officer for a variety of - 14 - businesses, one of which had a crane division that maintained, inspected and sold various types of cranes. Manfred Kohler, an engineer and the chief executive officer (“CEO”) of CTS, purchased the company in or around 2000, and Mr. Hegan was appointed to its board of directors. Mr. Hegan testified that he has been in the crane business since 1994. At CTS, Mr. Kohler leads investigations and Mr. Hegan works on the details (Hegan: Tr. 149-55, 248; Kohler: Tr. 708-09; Pet. Ex. 11). Prior to this job, CTS had been retained by DOB from around 2010, to investigate previous crane accidents in New York City, and had made a number of recommendations to DOB regarding crane operators, engineers and the crane industry in general, with the ultimate goal of making crane operations safer (Hegan: Tr. 152, 157; Kohler: Tr. 720-21, 748, 752). CTS’s discussions with crane operators prior to making their recommendations spawned a 40- hour crane course which CTS developed for operators who are new to New York City, and for those who are interested in elevating the class of license that they hold. From the 40-hour course, a mandatory eight-hour refresher training course evolved for operators to take when they renew their crane operators’ licenses every three years (Tr. 158-60, 163, 165; Pet. Ex. 12). Mr. Hegan teaches the refresher course and was involved in the assembly of regulations relating to crane operations in New York City, with some input from DOB (Tr. 161-62). The course covers crane accidents, OSHA standards, New York City regulations, inspection and maintenance of cranes, and rigging and site construction safety. It also addresses “Manuals,” and “Crane and Hoisting Machine Setup” and “Set Up in New York City” (Tr. 163; Pet. Ex. 12 at 35, 42-43). Mr. Hegan instructs course attendees on DOB’s expectations with respect to crane set-up and instructs that if they do not understand something in the crane manual, they should reach out to the manufacturer who shares their goal of avoiding accidents (Tr. 164-66). Over respondent’s objections, I declared Mr. Hegan to be a theoretical expert in crane operations (Tr. 170-71). Mr. Kohler attended engineering school in Germany where he became a professional engineer, as well as a welding and metallurgical engineer (Tr. 710; Pet. Ex. 20). He worked for an engineering company that built ship-to-shore cranes, straddle carriers, bulk handling cranes, luffing boom tower cranes and hammerhead cranes. He made calculations in the design of cranes, tested prototypes, and had oversight of all drawings. In 1971, he came to the U.S. on a two-year contract to conduct training on tower cranes. He emigrated to the U.S. and led a crane - 15 - factory in Houston, which built tower cranes and concrete pumps (Tr. 712-15). Static and dynamic performance analysis is one of his expert skills (Tr. 713-14; Pet. Ex. 20). Mr. Kohler also identifies himself as an expert in structural repair procedures which involve the analysis and replacement of steel following crane accidents (Tr. 714). As CTS’s CEO, he directs the company and provides engineering input (Tr. 709). He is an ASME subcommittee member for tower cranes and a former Society of Automotive Engineers committee chairman for establishing tower crane codes in the U.S. (Tr. 719; Pet. Ex. 20). Mr. Kohler testified that he has conducted forensic investigations into previous crane accidents (Tr. 715-16). I also deemed Mr. Kohler to be a forensics expert witness for DOB, without objection from respondent.

Overview of CTS’s Investigation CTS’s investigation started the day of the crane collapse. By the time its crew arrived in New York City, it was dark and the snow on the boom of the crane had already melted. They took photos of the collapsed crane and met with Ashraf Omran, DOB’s Executive Director of Cranes and Derricks (Hegan: Tr. 238-39, 300; Kohler: Tr. 895, 907-09; Pet. Ex. 14 at Ex. D.1). After a few hours, the CTS team left the site and returned the following day, during which it took more photographs and noted the configuration of the main boom and jib sections (Tr. 200-03, 499-50; Pet. Ex. 14 at Ex. D.2). The removal/recovery process began with Bay Crane taking the lead and Galasso assisting. Removal required Bay Crane to cut the jib tip section which had been bent after contact with the adjacent building. The component parts were removed to a secure site at the Brooklyn Navy Yard. The rear counterweights were removed without incident. Bay Crane sprayed a red line across the main boom hoist rope winch to mark the rope that was on the drum prior to flipping the crane back over. Bay Crane also sprayed a white line along the jib hoist winch for the same reason (Pet. Ex. 14 at Ex. D.2-D.3). As part of the investigation, Mr. Hegan, Mr. Kohler, and three other CTS employees reviewed documents from Bay Crane, Liebherr, MRA and Galasso (Tr. 184-85). CTS’s report indicates that it also reviewed three Leibherr manuals for the crane which were not identical. But it focused on the one which respondent had available to him in the cab (Pet. Ex. 14 at 14). CTS hired an independent lab to analyze the hydraulic oil, another company to conduct “destructive” testing, AccuWeather Forensics to provide information on the weather that was forecasted for the day of the accident, and the engineering firm of Simpson Gumpertz and Heger, - 16 - to assist it with a sensitivity analysis which involved plugging in different boom angles, boom lengths, jib angles, jib lengths and wind speeds to establish wind tolerance levels (Hegan: Tr. 198-200; Kohler: Tr. 740-41; Pet. Ex. 14 at B, C). CTS looked at a YouTube video of the accident which appeared to show snow or ice accumulation on the crane as it was being boomed down, as well as the point at which it became unstable and rapidly collapsed (Tr. 197-98; Pet. Ex. 13). However, they could not estimate how much time had elapsed from the beginning of the collapse to the time that the camera operator began to record. CTS attributed the acceleration of the collapse to the force of gravity (Tr. 352-54). During the investigation, CTS participated in sworn interviews of respondent, Brent Graham, Greg Galasso and Steve Mazzacco, which were conducted by BSIU and were recorded and transcribed (Tr. 204-05, 356; Pet. Ex. 15, 16, 17, 18). With significant input from Mr. Kohler and CTS employee Craig Adams, Mr. Hegan wrote a report on CTS’s findings. Because of his technical expertise, more focus will be devoted to Mr. Kohler’s testimony. CTS prefaced its findings with an executive summary in which it articulated that “[a] crane accident of this magnitude is normally a result of a combination of action/inactions/errors that occur over a period of time, and this is true for this accident” and concluded that the crane operator “failed to follow [DOB] regulations and the manufacturer’s requirement to secure the crane overnight on February 4th in advance of a forecasted wind/weather event.” A report which CTS procured from AccuWeather informed that around noon on February 4, 2016, the National Weather Service issued the following forecast for February 5, 2016: [C]loudy in the morning . . . then clearing. Breezy with highs in the low 40s. North winds 15 to 20 mph. (emphasis added)

(Pet. Ex. 14 at B). CTS further found that on the morning of the accident, “the operator continued his improper actions by lowering the main boom to a 72 degree angle which put the crane at its stability limit” and that those compounded errors ultimately caused the crane’s collapse (Pet. Ex. 14 at 4). CTS issued its report in November 2016, placing sole responsibility for the accident on respondent (Tr. 150, 171, 184-87; Pet. Ex. 14). CTS found no issues with the foundation of the cribbing or foundation of the crane. At trial, Mr. Kohler noted that ground chocks (which are - 17 - mentioned in one of the allegations against respondent) are not applicable to the LR 1300 (Hegan: Tr. 238-39, 300; Kohler: Tr. 895, 907-09; Pet. Ex. 14 at Ex. D.1). Following receipt of CTS’s report, DOB brought the subject charges against respondent on or around December 6, 2016, and suspended his hoist machine operator’s license in January 2017. Before discussing details of CTS’s investigation into the collapse and the countervailing testimony of respondent’s experts with respect to the crane’s stability, I find it necessary to bridge the gap between the initial build of the crane and its collapse, as recounted primarily by respondent, and to a lesser extent by Steve Mazzacco, the crane’s oiler.

Respondent’s Testimony January 30-31, 2016 Respondent arrived on the job on Saturday, January 30, 2016, and met the assembly team of Brent Graham, Joe Valenza, Dominick Milone and Colin Campbell. Graham and Valenza were the foremen and respondent’s supervisors on the job. Graham represented Greg Galasso (Tr. 1139-41). While the crane was being assembled, respondent read the assembly and disassembly procedures in the manual and reviewed the load charts (Tr. 1221-22). He also requested the list of items that were to be lifted and learned that two exceeded 25,000 pounds. He could not find a load chart in the machine with the configuration as built. Nor could he find one in the manual. He told Graham who began making inquiries, but the situation was not resolved. Respondent eventually called Bay Crane who promised to send someone to the jobsite (Tr. 1148-49). When the build was completed early on the morning of Sunday, January 31, 2016, respondent and Steve Mazzacco accompanied Inspector Meyer as he inspected the crane. Because of its unusual length, respondent asked the inspector what he should do after the boom had been lifted and the inspector replied that it should remain erected overnight. Respondent was concerned and he and Mazzacco informed the inspector that they lived about one hour away, but the inspector reassured them that leaving the crane boomed up had been approved. He also advised respondent that in the event of winds at 15 miles per hour, the crane had to be brought down. Work was scheduled to begin on Monday morning. With radio instructions from the team, respondent boomed the crane up as the final part of the inspection. No one remained with the crane overnight (Tr. 1142-45, 1221, 1225). During the BSIU interview, respondent - 18 - explained the step-by-step procedure of raising the boom to 80 degrees and the jib, from 60 to 70 degrees (Pet. Ex. 15 at 46-53). February 1, 2016 When he got to work on Monday morning, respondent performed his safety checks on the crane. At some point, he was provided with the job plans. To him, the stowage plan did not appear feasible. But he started the heavy lifts, anyway. He also paced off the distance between the crane and Hudson and Worth Streets and alerted Joe Valenza that the stowage plan would not work because there was a residential building at the base of Worth and Hudson Streets. Respondent was concerned because the stowage plan lacked measurements such as height and radius and lacked notes that would indicate landmarks. Respondent also read in the manual that stowing a crane of such a configuration required ballast supported from the jib head, which had to be one meter from the ground. He brought his concerns about the stowage plan to Galasso’s attention but they were unconcerned and told him that the stowage plan was for an emergency (Tr. 1143, 1146-48, 1203, 1222). He did not address his concern with the engineer who drew the plans (Pet. Ex. 15 at 60). Late on Monday morning, a Liebherr representative came to the jobsite, notified respondent that the crane’s software needed to be updated and asked him to approve the update, which he did. Galasso was not very happy because he was concerned about time constraints. Respondent assured Galasso that the update would be completed within one hour. After the update, the load chart issue persisted and respondent asked the representative to explain it (Tr. 1150-51; Pet. Ex. 15 at 32-33). Respondent indicated that throughout the day, he would check his weather applications (“apps”), (Weather Channel and Weatherbug) which, according to him, are recognized and preferred in the industry. He said that it is very hard to be accurate in NYC because the winds can vary from street to street. He also monitored the anemometer on the crane constantly (Tr. 1153-54). At the end of the day on Monday, respondent placed the crane “at what [he could] find as closest to the park position for that machine.” He was aware that the manual required that the crane be laid down overnight but claimed that Inspector Meyer had approved leaving it erected. Respondent spoke with Graham and Valenza who also supported leaving the crane erected. Nevertheless, respondent parked the crane by bringing the main boom to an 80 degree angle and the jib to a 67 to 70 degree angle, which was provided by the wind chart in the Liebherr manual - 19 -

(Tr. 1154-55, 1226, 1237; Pet. Ex. 15 at 45-46). Respondent produced an excerpt from the operational planning page of the Liebherr manual for the LR 1300. It contained tables with different crane configurations and recommendations for each configuration (Resp. Ex. Z). The document confirmed that the recommended parked position for the crane in its configuration at 60 Hudson Street (194 feet of main boom and 322 to 371 feet of jib) was to lay down the boom. However, based on respondent’s testimony and Liebherr’s operational planning page, it appears that respondent adopted the recommendation for a crane with a maximum jib length of 282 feet (Tr. 1156). February 2, 2016 On Tuesday, respondent executed two lifts (Tr. 1158-59). At the end of the day, respondent parked the crane in the same position as he did the previous evening. When asked whether he was given any plans to lay the crane down as per the manual instructions, respondent replied “No, just in the most general sense,” referring to the stowage plan (Tr. 1160-61). February 3, 2016 Respondent testified that Wednesday morning was a little breezy and higher winds were forecasted. He monitored his weather apps and the crane’s anemometer and when the winds exceeded 15 miles per hour, he suggested to Brent Graham that they lay down the boom. Graham and Joe Valenza assembled the flagmen who cleared the street and diverted traffic (Tr. 1161-62). Respondent did not inquire about an emergency lay down plan because when he initially pointed out the deficiency of the stowage plan, he was not provided with one and did not anticipate getting anything further (Tr. 1235-36). Because he was already aware that the crane could not be jack-knifed according to the stowage plan, respondent swung the crane 180 degrees to the east over West Broadway, instead of to the west towards Hudson Street as per the stowage plan, and successfully jack-knifed the crane.5 He noted that there were no permits for jack- knifing the crane but it was the only available option (Tr. 1163-65, 1250; Pet. Ex. 15 at 66, 72). Greg Galasso, who came to the site but never spoke with respondent, appeared to be aggravated because he yelled at his men and flailed his arms. No lifting was done that day (Tr. 1165). During his BSIU interview, when asked if he had spoken with the engineer who had drawn the stowage plan to show the crane jack-knifed in the direction of Hudson Street,

5 Respondent explained the process as follows: 1) keep the boom at 85 to 88 degrees; 2) bring the luffing jib down until about 90 percent of the “LMI” chart is reached; 3) lower the headache ball to the ground; and 4) lower the luffing jib to the ground (Pet. Ex. 15 at 64). - 20 - respondent stated that he would “imagine we got approval from the master rig--, I’m not sure who gave us permission to do it, but I knew I walked it off” (Pet. Ex. 15 at 59-61). To accommodate a planned extension of the boom by 49 feet on Wednesday evening, street detours were set up again, streets were closed to pedestrian traffic, and respondent laid the crane down from Worth Street and West Broadway to Church Street. Two DOB inspectors were present for the additional build which realized 194 feet of main boom and 371 feet of jib, the full capacity of the crane. Respondent had never operated the LR 1300 at its full capacity. But a few weeks before, he had operated one at 75 Rockefeller Plaza, which had a jib that was 20 feet shorter. The plans for that job were submitted by the same engineer who submitted plans for 60 Hudson Street and contained more detail6 (Tr. 1166-70; Resp. Ex. II). From that earlier job, respondent learned that the crane had to be atop the cribbing and that they needed more height to raise the toes of the crane and get the tipping line back in order to get the boom off the ground. So for the new configuration at 60 Hudson Street, cribbing that exceeded the crane manual’s requirements was added (Tr. 1172-73). Respondent then raised the boom with assistance from Bay Crane personnel because once the jib was on the ground, he could not see the pendant on the far side of the jib when lifting. He encountered no such problem with lowering the boom which he felt comfortable doing without assistance (Tr. 1240-41; Pet. Ex. 15 at 82). February 4, 2016 On Thursday, a report of water in the basement of 60 Hudson Street was investigated. Respondent denied that it affected the crane’s stability (Pet. Ex. 15 at 22-23). The same day, respondent attempted to raise the boom up to an angle of 70 degrees as recommended by the crane’s manual, under the supervision of Galasso and Bay Crane. The back of the machine started to lift so he boomed up some more, maintaining the jib on the ground with tension. When he got to 76 degrees, he was able to raise the jib off the ground without the back of the machine being lifted (Tr. 1213-14, 1231). Because the crane was already in assembly mode, respondent was able to operate two levers – one for the main boom in the right hand and the other for the jib in the left (Tr. 1167-68, 1229-30). After DOB inspectors inspected and approved the new configuration, respondent slept in the crane until work was scheduled to commence (Tr. 1171-

6 Respondent also submitted a copy of a CN package for a job at a location known as the Hudson Yards in Manhattan, which used a Liebherr LR 1300SX. Respondent was not the crane operator for that job but distinguished its stow plan from the one approved for his job in that it was detailed, displaying two stow positions, angles, and wind restrictions, which were absent from the 60 Hudson Street stow plan (Tr. 1205; Resp. Ex. CC). In addition, it was reviewed and approved by the same plan examiner who approved the plans for the 60 Hudson Street job. - 21 -

72). At no time did he mention to the inspectors, the problem which he identified with the stowage plan (Tr. 1236). When asked whether he informed the inspectors of the manual’s recommendation that the crane be laid down in its parked position, respondent replied that, like Inspector Meyer, Inspector Hamilton told him to leave the crane erected (Tr. 1238). On Thursday, lifting was accomplished with no issues (Tr. 1173). On Thursday evening, respondent checked his two weather apps. While there was a forecast of snow, he claimed that the predicted winds did not exceed 15 miles per hour. Meanwhile, he was in the crane when he saw the Galasso men talking to each other on the street, in front of the crane, and about 40 feet away from him. Steve Mazzacco came over and got onto the catwalk of the machine and told respondent that he, Joe Valenza and Brent Graham were looking at the wind forecast for the following morning and wondered if they should be concerned (Tr. 1174-75, 1233; Pet. Ex. 15 at 85). Respondent later denied that anyone had expressed concern about the wind forecast (Tr. 1249-50). Respondent opined that given the length of the jib, he felt that the boom should have been laid down every night. But he was not permitted to lay the boom down as there was no provision for him to do so (Tr. 1176). Moreover, he stated that he could not secure the crane by himself and insisted that he had told his superiors that there was an issue with doing what the manual specified (Tr. 1227-28). February 5, 2016 When respondent arrived at work on Friday morning, rain turned to wet snow at around 6:50 a.m. and he could see snow build-up on the crane. He climbed into the crane and sat for about five minutes. He testified that he saw Inspector Meyer approach on the sidewalk along Worth Street from Hudson Street. The inspector chatted with him about how the job had gone smoothly and the wind had been cooperative. Respondent believed that the inspector inquired about the wind speed and he recalled that it was nine miles per hour. While respondent waited for the crew to arrive, he continued to check his weather apps and monitor the anemometer on the crane (Tr. 1176-77). At around 7:50 a.m., “things started to happen.” The Weather Channel and Weather Bug apps showed winds up to 14 miles per hour. By the time the other workers arrived, he indicated to Joe Valenza and Brent Graham that the wind speed appeared to be increasing and they might have to lay the boom down (Tr. 1177-78). - 22 -

One website forecasted winds of 25 to 30 miles per hour from 8:00 to 9:00 a.m. He could not recall which occurred first - the forecast or an actual gust of wind at 25 miles per hour. But he observed the jib move significantly such that he felt that if the winds were more intense, the jib might have struck a building. Respondent decided to jack-knife the crane and called Joe Valenza by phone to urge booming it down (Tr. 1178-79, 1182, 1211, 1239-40; Pet. Ex. 15 at 87-91). His phone records showed a call placed on the day of the accident at 7:59 a.m. Respondent testified that it was a record of the call made to Mr. Valenza, one of the site supervisors (Tr. 1179-82, 1234-35). When asked whether he inquired about a plan to lay the crane down, respondent replied that the situation was close to being an emergency so he did not think that it was the time for such an inquiry. He felt it would be safer with the boom head on the ground. He also opined that weather conditions on Friday morning were more dire than that which he faced on Wednesday morning (Tr. 1235). Respondent testified that the boom placed significant weight at the front of the crane, so he needed to have more plywood in place to block the CATS and thus move the tipping point back. He explained that the gears that moved the crawlers had to be positioned in the center just over the edges of the plywood. Once that was accomplished, respondent asked Mr. Valenza to let him know when he could start to boom down. Mr. Valenza contacted Brent Graham whom respondent assumed contacted the signalmen who would alert respondent when the area was cleared of vehicular and pedestrian traffic so he could proceed with taking the crane down. Then Mazzacco and Valenza began to walk down the block to the west side of West Broadway on Worth Street, where Graham was already positioned. When Valenza gave the sign, respondent began the process of bringing the crane down. He first boomed up from 80 to 88 degrees to begin his swing from west to east, because they had moved the tipping line further back, which increased his ability to lay the boom down. He also testified that booming up to that angle was safer as it provided a shorter radius. But respondent acknowledged that at the time, it was not a procedure recommended in the crane’s manual (Tr. 1183-85, 1186-88). Respondent continued to move the crane to face east on Worth Street, then boomed back down to 80 degrees so he could crawl the machine 30 feet west to allow enough room for the boom to fit in the direction of Church Street (Tr. 1185). At that point, he was using one lever for both the boom and the jib. He intended to get to 90 percent capacity before switching to assembly mode, which is standard in the industry (Tr. 1188-89, 1195). Respondent turned on the - 23 - assembly mode button which “remove[d] the safeties” and permitted him to switch from one to two levers. He activated the safety switch and stepped out to wipe snow off the windshield when he saw the jib and the headache ball moving. He reentered the cab to see if the wind would calm down. But he saw the horizon change and “it started to lift up”7 (Tr. 1195-97). He testified that he was not looking at the crane’s anemometer. He was looking for persons on the ground while simultaneously watching the head of the jib. It was difficult because the sky had darkened (Tr. 1197-98; Pet. Ex. 15 at 91-95). Respondent recalled that when the crane started falling, he tried to brace himself while pulling the lever as gently as possible to try and recover. But the crane was already toppling over. He remembered his hands were in front of him as his head almost hit the roof of the cab and thought that the counterweights would descend on him and kill him (Tr. 1198-99; Pet. Ex. 15 at 100-03). After the accident, respondent crawled out from underneath the crane after the cab rolled, flipped and ejected him through the roof (Tr. 1193-94, 1199). Before BSIU, when Mr. Hegan asked respondent what the boom and jib angles were at the point that “he turned around, pressed the button, and then [he] felt the, the, the rear end of the crane coming up,” respondent replied that he had the boom at above 80 degrees. He was uncertain about the jib angle, but believed that the last number he saw was around 45 degrees (Pet. Ex. 15 at 108). The crane’s computer printout of activity on the day of the accident showed that at 8:49:56 a.m., when respondent activated the main boom limit switch, the main boom angle was at 80 degrees. Respondent was unfamiliar with the computer printout and could only speculate as to the meaning of the readings (Tr. 1190, 1192; Pet. Ex. 14 at Ex. J; Resp. Ex. P at 6). While respondent’s testimony was consistent, I found certain portions to be clearly self- serving and problematic. In making credibility determinations, this tribunal has considered “witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9,

7 In his BSIU interview, respondent indicated that when he got to 90 percent capacity, the ball was still high and he felt it moving around. He reached back to push the setup button and as he turned around, felt the machine move. He looked back “and the fucking thing [was] coming up.” He tried to luff up to recover but with “that much machine, it [wasn’t] happening” (Pet. Ex. 15 at 93-95). - 24 -

1998). Respondent had never previously operated a crane of this magnitude and it should have been logical for an experienced crane operator as he to recognize the potential for dire consequences if the approved plans for stowing the crane were unachievable. Hence, his testimony that he brought his concerns about the stowage plan to Galasso’s attention and did nothing further when those concerns went unheeded was difficult to accept. Also, respondent’s claim that he felt that the boom should be laid down each night but was precluded from doing so was not corroborated by anyone, including the crane’s oiler.

Mazzacco’s Testimony Steve Mazzacco has been a crane oiler since 1985 (Tr. 1065). He holds a class C crane operator’s license and a State license and has operated the LR 1300 outside of NYC (Tr. 1090). He was interviewed by BSIU on May 24, 2016 (Pet. Ex. 18). Mr. Mazzacco’s statement to BSIU and his testimony at trial are summarized below. Mr. Mazzacco has known respondent for about 15 years and is his friend (Tr. 1066, 1096- 97; Pet. Ex. 18 at 2-7, 66, 77-78). He testified that respondent has an “excellent” reputation for safety, always walks around with the manual of the crane that he is operating and does everything by the book (Tr. 1066-68, 1117; Pet. Ex. 18 at 66). Respondent also seeks assistance from Liebherr and clarification from Galasso (Tr. 1116, 1118-1119). Mr. Mazzacco testified that upon completion of the build, Inspector Meyers reviewed the plans, inspected the crane, and did safety checks. The crane passed inspection and Inspector Meyers approved leaving the crane erected. Mr. Mazzacco corroborated respondent’s testimony that they both expressed concern because of how far they resided from the job site and that the norm was to lay the boom down. But the inspector nevertheless authorized leaving the crane erected and stated that the approved plans permitted it (Tr. 1071-73, 1093-94, 1120-23). While acknowledging that it was not his responsibility to do so, Mr. Mazzacco claimed that he reviewed the plans briefly and did not see anything in writing permitting the crane to be left up (Tr. 1124). He indicated that in the past, booms would be left erected but because of crane accidents, new regulations required that the cranes be boomed down (Tr. 1122, 1127). He corroborated that Inspector Meyer issued a word of caution that the crane should be brought down in the event of winds exceeding 15 miles per hour (Tr. 1074). - 25 -

Mr. Mazzacco maintained that it was a group decision to jack-knife the crane on Wednesday, February 3, 2016, and described Greg Galasso’s reaction as angry, yelling and screaming because Galasso had been at a job uptown where the wind was fine. In addition, Galasso met with master riggers Joe Valenza and Brent Graham and even though they were about 20 to 30 feet away from him, Mazzacco could hear Galasso express concern that jack- knifing the crane would interfere with the day’s work (Tr. 1074-76, 1098; Pet. Ex. 18 at 22-24, 26). During his interview, Mr. Mazzacco did not characterize Galasso as angry. When this distinction was identified at trial, he suggested that he had never been asked (Tr. 1111-12). Also on Wednesday night, Mr. Mazzacco participated in the reconfiguration of the boom (Tr. 1076-78, 1096). During his interview, he stated that the build extension was originally scheduled for Thursday but was brought forward because the crane was already down (Pet. Ex. 18 at 27-28). At trial, Mr. Mazzacco claimed that on Thursday, respondent reviewed his weather apps and Mr. Mazzacco mused about what might be done on Friday (Tr. 1079, 1099). During his BSIU interview, when asked about any meetings that may have taken place to discuss plans for Friday, he requested a bathroom break and indicated that he needed to speak with his attorney (Pet. Ex. 18 at 30, 34-35). Upon his return, he stated that the “whole job” mentioned “bad weather coming in for Friday.” Mr. Mazzacco was adamant that he and respondent were at a meeting when someone mentioned that bad weather was anticipated for Friday (Pet. Ex. 18 at 36-38). This was in sharp contrast to his testimony before this tribunal where he insisted that on Thursday morning, he, Brent Graham, Joe Valenza and about half of the crew met regarding the impending weather, but respondent was working on the crane and was not present for the meeting. Mazzacco also testified that because of the wind, he asked Graham what they intended to do on Friday and Graham responded “we’re not laying it down. I don’t want you guys to pull that Union shit.” So the crane was left erected on Thursday evening (Tr. 1080-81, 1108, 1115). He never mentioned this interaction with Graham during his BSIU interview. On Friday morning, Mr. Mazzacco arrived at work between 6:00 a.m. and 7:00 a.m. It was snowing and respondent, who was already at the site, expressed concerns about the increasing winds and thought that the crane should be laid down. Mr. Mazzacco and respondent spoke with the Galasso team and although angry, they sprang into action and closed the streets at around 8:00 or 8:10 a.m. As Mr. Mazzacco walked with Brent Graham who was giving - 26 - directions over a radio, the wind started to increase rapidly (Tr. 1082-86; Pet. Ex. 18 at 36-42). Because respondent decided to jack-knife the crane, the crew planned to follow the same procedure that they followed on Wednesday. They used plywood to chock up the front CATS to keep the crane from rolling. Respondent then rotated the crane to face the direction in which he was going to lay the boom down. He locked the boom and then started to luff down but something happened. Mr. Mazzacco looked up and saw the boom “coming down fast” and he ran (Pet. Ex. 18 at 42-43, 46-48, 57-64, 81-82). After the crane crashed, Mr. Mazzacco and Galasso’s workers ran towards the cab to check on respondent whom they found crawling out of the cab. Respondent was in shock. They then checked to see if anyone was hurt (Pet. Ex. 18 at 65, 83). I found Mr. Mazzacco to be less than credible. He offered conflicting testimony as to whether or not respondent was present during a meeting on the Thursday preceding the collapse, to discuss the severe weather that was expected the following day. This was critical because of its implication that even if the weather apps on respondent’s phone did not provide accurate information, his presence at the meeting would have provided him with notice of the impending bad weather. Because of this conflicting proof, I was not persuaded that respondent attended the meeting on Thursday morning.

Stowage Plan Both parties focused on the stowage plan that DOB had approved. DOB’s experts consistently referred to the dialog box on the stowage plan that directed respondent to stow the crane in accordance with the manufacturer’s instructions, while respondent’s experts repeatedly characterized the stowage plan as deficient because it provided no guidance in terms of angles and dimensions.

Petitioner’s Experts Mr. Hegan expressed that CTS’s mandate was determining the root cause of the accident, and it did not perceive of any failure on DOB’s part as a major contributing factor to the crane’s collapse (Tr. 360-61). The CTS team did not formally interview Inspector Meyer. It had a discussion with him and noted that his job entails looking at the general arrangement and placement of the crane, as - 27 - well as the cribbing, which he checks off against a checklist. Mr. Hegan was unsure whether Inspector Meyer was required to check the stowage plan, but conceded that he should have done so and issued a Stop Work Order if he had detected any irregularities during the initial build (Tr. 357-58, 363-64, 391, 401). CTS also did not conduct a formal interview of the engineer. Instead, upon review of his plans, they called and spoke with him by telephone (Tr. 757-58). Nor did CTS review correspondence between MRA and Liebherr regarding the propriety of jack- knifing the crane (Tr. 868). CTS noted that the stowage plan directed the operator to refer to the manufacturer’s recommended procedure (Tr. 360-61). The manual provided for jack-knifing the crane in assembly or disassembly mode and Liebherr had indicated to Mr. Hegan that if respondent or the crane’s owner had reached out to them, they would have authorized jack-knifing the crane so long as lateral support was provided for the boom and jib. Mr. Hegan opined that respondent should have called the engineer when he realized that the stowage plan did not provide for room for the crane to be laid down, suggesting that it was the engineer’s responsibility to reach out to Liebherr (Tr. 228-29, 235-38, 295, 332, 405-06; Pet. Ex. 14 at Ex. F-318). Like Mr. Hegan, Mr. Kohler focused on the directions contained in the dialog box on the stowage plan, that in severe weather conditions the crane was to be stowed as per the manufacturer’s recommended procedure. He noted that the directions in the crane manual required the crane to be lowered to the ground when winds exceeded 15.66 miles per hour. CTS could not locate any procedure in the crane manual regarding raising or lowering of the boom, but found this to be typical when a crane could have multiple configurations. But Mr. Kohler insisted that since the manufacturer only provided for a full lay down of the crane, respondent should have done so (Tr. 729-31, 789). Mr. Kohler reviewed the CN package as well as the DOT approvals that were obtained. He agreed that plans for stowage required DOT permits for street closures. But he did not check to see if the engineer and contractor had arranged for street closures on every night in order for the crane to be laid down. He claimed that he focused on the engineering aspect of the collapse and that Mr. Hegan reviewed paperwork. Besides, he found such matters to be ancillary to the cause of the accident (Tr. 759, 772-73, 866-68). CTS had little doubt that respondent knew how to raise the boom because he had articulated the angle at which he needed to raise it in order to get the jib off the ground. - 28 -

However, according to Mr. Kohler, it was the crane operator’s responsibility, not the City’s or plan examiner’s, to inquire of the manufacturer whether there was an approved methodology to take the crane down. (Hegan: Tr. 406-07; Kohler: Tr. 730-32, 870-71, 873, 888). Mr. Kohler was aware that respondent had participated in the assembly and erection of the crane on the first day of the build. He also knew that respondent had jack-knifed the crane over West Broadway the following Wednesday morning because of inclement weather (Tr. 765- 67, 891). While it occurred before the reconfiguration of the crane, Mr. Kohler was critical of respondent’s jack-knifing the crane over West Broadway. He declined to answer whether the engineer is responsible for ensuring that proposed plans contain a proper laydown procedure for the crane, instead deflecting to the plans for the job and assessing as sufficient, the engineer’s inclusion that the manufacturer’s recommendation should be followed. When asked if respondent’s action was the result of the insufficiency of the stowage plan provided by the engineer, Mr. Kohler stressed that CTS always teaches crane operators that if there are deviations with any of the drawings, they should cease operations and get clarification from the engineer. Mr. Kohler was adamant that since the stowage plan provided for the crane to be “stowed (jack- knife) in severe weather conditions as per manufacturer’s recommended procedure,” and since to do so would have been contrary to the manual, respondent should have contacted the manufacturer. He also suggested that respondent should have requested a corrected stowage plan drawing from the engineer (Tr. 753, 768-69, 890-91; Pet. Ex. 3 at SP-1 of 1). Mr. Kohler conceded that the Liebherr manual called for operators to be cognizant of the national standard, ASME, but noted that some cities’ rules and regulations supersede ASME. He could not say whether ASME standards were more restrictive than NYC’s rules, but as far as he was concerned, respondent was required to comply with NYC rules which rules require the operator to be familiar with the procedures in the crane operator’s manual (Tr. 775-76, 863-65, 896). Mr. Kohler also acknowledged that pursuant to ASME B30.5 2014 at 5.3.1.3.3, the crane operator is not responsible for hazards or conditions that are not under his direct control and that adversely affect lift operations, but if he has doubt as to the safety of crane operations, the operator shall cease operations and they shall only be resumed when those concerns have been addressed (Tr. 879-81, 888; Resp. Ex. O).

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Crane Notice Application Review Ashraf Omran, DOB’s Executive Director of Cranes and Derricks division, testified along the same lines as Mr. Kohler.8 Mr. Omran is a licensed professional engineer. He is a member of ASME and sits on the council that reviews and comments on ASME B30 Standards. At DOB, he supervises plan examination, inspection and administrative staff. He interprets the Crane Code for the industry and has worked on the codes and rules for three years. He testified that in the first phase, section 3319-01 of Title I of the RCNY (under which respondent was charged and which replaced the previous Reference Standard 19-2) became effective on January 1, 2016. That phase covered prototype requirements for a crane and compliance requirements. The second phase is primarily about the CN and became effective on May 24, 2017. The third phase will involve inspection of the crane (Tr. 532-36). Mr. Omran testified that for the CN, the engineer must: visit the site to determine crane placement; look at adjacent structures; and look for a retaining wall before submitting an application with all calculations and drawings to the Department. The engineer must also coordinate with the contractor to determine what crane will be required for the job. If the crane manufacturer requires specificity beyond the crane manual, it should be included in the plans. Based on location, the engineer must determine if permits are needed from transportation entities such as TA, MTA, Port Authority and LIRR (Tr. 536, 641-42). Mr. Omran did not know if MRA had gone to the site prior to submitting its plans to the Department but claimed that a correct plan could not otherwise be drawn. He stated further that it would be a violation of law if the engineer falsely swore that he had visited the site without having done so. Moreover, if it was impossible to proceed with the plan as drawn, the engineer or the contractor was required to notify the Department. When asked if MRA misrepresented that the crane could be jack-knifed facing Hudson Street, he replied that MRA should not be held responsible because it requested immediate notification of any problem (Tr. 572, 590-91, 642-44, 648). This oddly conflicted with his testimony that the engineer was required to visit the site. Mr. Omran was aware that when the LR 1300 is selected for the job, there must be specified instructions on how to take the crane down. If the manual lacks such instructions, the engineer must be contacted. Mr. Omran did not know if, prior to plan approval, DOB required the engineer to get directions from Liebherr as to how to take down the crane (Tr. 593). But he

8 Under its contract with DOB, CTS was required to coordinate its work with Mr. Omran (Resp. Ex. KK). - 30 - agreed that the engineer is responsible for the design of the plan and safety of the erection of the crane and that the contractor must confer with the engineer in planning the job and making sure that they are going to act in accordance with the approved plans (Tr. 576, 616). Mr. Omran said that an application is assigned to a plan examiner for review based on the examiner’s experience and the complexity of the application (Tr. 537). Plan examiners review applications for compliance with the Code, Rules and Regulations. They are not required to conduct on-site inspections to assess the feasibility of a plan submitted to DOB (Tr. 537). They expect the engineer to submit a complete package for review and rely on the survey letter in the submitted application. According to Mr. Omran, “We cannot be everywhere at any given time. We have [a] licensee there to make sure that these plans are met, or they have to stop immediately, an amendment have to, has to be filed. No one should operate the crane at that given time.” Thus, no inspections are conducted prior to plan approval (Tr. 587-88, 685). As for this job’s stow plan, Mr. Omran opined that the plan examiner would not know that there was insufficient room to jack-knife or lower the crane simply from reviewing the drawing and that it was the operator’s responsibility not to operate the crane but to notify the contractor who should notify the Department and file an amendment (Tr. 546-48). Mr. Omran testified that if on-site conditions change between the approval of the plans and the time that the crane has to be put to use, the contractor should not use the crane and the operator should cease its operation (Tr. 686). The engineer should file amended plans and the contractor and operator should await approval of the amendments before the crane is put to use (Tr. 687). Mr. Omran concurred that a failure to submit a correct plan is negligence and that if the engineer submitted a plan, knowing that it was infeasible, that would be an intentional wrongdoing (Tr. 565-66). He later added that DOB was required to review the plans to ensure their propriety and their safety for New York, and concurred that if DOB approved the plans before the engineer had directions as to how to take down the crane in this particular configuration and to stow it, then the plans had been approved prematurely (Tr. 575-77, 588, 594, 606).

Mr. Omran insisted that the DOB inspector only does assembly and disassembly inspections and does not review all the plans. The operation of the crane and how it is stored after hours is the responsibility of the operator, who must make the Department or the engineer aware of departures of the approved plans from the manual (Tr. 537-38, 574-75, 585-89). Mr. - 31 -

Omran seemed uncertain as to whether he reviewed the plans for this job before or after the crane’s collapse (Tr. 544, 557, 592). When asked whether DOB harbored any concern that the stowage plan was an impossibility, and whether it would approve a plan if the manufacturer had not provided the methodology for how to take the crane down in a particular configuration, Mr. Omran stressed that notes on the drawing referred to the manufacturer’s specifications and required the engineer to be contacted in case of error (Tr. 579, 594, 604-05). In spite of Mr. Omran’s acknowledgement that a notation on one of the approved drawings placed responsibility on the contractor to verify all dimensions and site conditions prior to commencing work, and to immediately report any errors, omissions or unusual conditions to MRA, he countered that the contractor hired an operator who was required to verify that the drawing could be executed before he used or operated the crane (Tr. 579, 614-15). And throughout his testimony, Mr. Omran insisted that the impossibility of the stow plan submitted by the engineer and the contractor was not a failing since they noted that the crane was to be jack-knifed in severe weather conditions as per manufacturer’s instructions (Tr. 583-84, 652-56). He also refused to concede that the engineer did not provide a drawing of the crane in a laid down position (Tr. 632-34). Mr. Omran testified that the Building Code requires compliance with the manufacturer’s instructions as to how the crane should be secured overnight and the operator has to follow approved plans (Tr. 538, 540, 574-75). According to him, prior to February 5, 2016, a wind action plan was not required to be submitted with the CN application (Tr. 541-42, 690). Instead, the reference standards (RS 19-2) provided that in periods of high wind, the manufacturer’s specifications would govern so long as it did not permit the crane to operate in winds exceeding 30 miles per hour, which would trigger the stricter standard in 1 RCNY § 3319-01 (Tr. 542-43). Mr. Omran agreed that DOT permits are required in order to lay down a crane that would cross streets. But DOB does not review the CN package to see if the engineer and contractor obtained the requisite permits. He concurred that if the engineer and contractor did not obtain DOT permits to lay the crane down each evening, it demonstrated that it was not their intention to lay the crane down each evening (Tr. 634-35). - 32 -

When probed about the crane operator’s responsibility under ASME,9 Mr. Omran testified that ASME is not applicable because New York City has more stringent crane regulations. He admitted that some of those regulations incorporate portions of ASME but disagreed that a crane operator in NYC should follow ASME even where the crane manual directs the operator so to do (Tr. 692, 694-95). While Mr. Omran appeared to be extremely knowledgeable about the New York City Codes, the Building Code and ASME, I found him to be a very difficult witness who was consistently combative with respondent’s counsel, frivolously challenged her and constantly had counsel repeat questions.

Respondent’s Experts For 17 years, Jeff Holmes has been the equipment manager of North Carolina-based Buckner Heavy Lift Cranes (“Buckner”), which he described as the largest owner of Liebherr crawler cranes in North America, having 40 cranes with a 300-ton capacity. Mr. Holmes has worked for Buckner for 24 years and has a Bachelor’s degree in liberal arts. He holds a class A license from the NCCCO (National Commission for the Certification of Crane Operators) to operate crawler cranes. He supervises in excess of 60 crane operators, 45 of whom operate the larger cranes, 18 of which are LR 1300. He has planned and designed jobs for Buckner’s cranes (which are dispatched throughout North America and Canada) for 15 years but has only been involved with the LR 1300 for two to three years (Tr. 920-22). Specifically, Mr. Holmes is responsible for transportation of Buckner’s cranes, and for their assembly and disassembly, for

9ASME B30.5 outlines the safety requirements for mobile and locomotive cranes (Resp. Ex. A). Section 5-3.1.3.3 addresses Responsibilities of Crane Operators as follows: The operator shall be responsible for the following listed items. The operator shall not be responsible for hazards or conditions that are not under his direct control and that adversely affect the lift operations. Whenever the operator has doubt as to the safety of crane operations, the operator shall stop the crane’s functions in a controlled manner. Lift operations shall resume only after safety concerns have been addressed or the continuation of crane operations is directed by the lift director.

Section 5-3.1.3.3.1 itemizes individual responsibilities for crane operators. They include: (a) Reviewing the requirements for the crane with the lift director before operations. (b) Knowing what types of site conditions could adversely affect the operation of the crane and consulting with the lift director concerning the possible presence of those conditions. (c) Understanding and applying the information contained in the crane manufacturer’s operating manual. (x) before leaving the crane unattended. (6) considering the recommendations of the manufacture for securing the crane, when a local weather storm warning exists. - 33 - which he has received on-the-job training from crane operators. He attended a Liebherr training session in Germany and one in Houston, Texas for the Liebherr LR 1400, which included making mathematical calculations. He explained that the LR 1300 is a newer model crane. He has limited experience in its operation and had not attended training sessions for it. Instead, he supervises the operators and technicians who work on the LR 1300 cranes (Tr. 920-25, 929). Mr. Holmes testified that part of his responsibilities includes being intimately familiar with the manuals for each of the Liebherr cranes that Buckner operates. His planning activities include hands-on work, making calculations, working on load charts, wire roping, tension, compression, pounds of force, reeving and ground bearing pressures, and visiting assembly sites. He only confers with Buckner’s engineering department if he has a question. Mr. Holmes’s job also involves assessing the stability of a crane and interpreting the load charts (Tr. 967). He is familiar with Liebherr’s various manuals (Tr. 967-68). Over petitioner’s objections, I deemed Mr. Holmes to be an expert witness for respondent (Tr. 926-32, 966-67). With no objection from petitioner, I also declared Steve Miller to be an expert for respondent (Tr. 1020). Mr. Miller has been a crane operator for around 45 years. He is NCCCO certified to operate all types of mobile cranes and is also a practical examiner in mobile crane operations. For 25 years, he owned a consulting business which specialized in crane and rigging safety, fall protection and construction safety (Tr. 1014). Mr. Miller has attended several seminars covering topics such as wind effects on cranes and why cranes are boomed up and down, and fall protection. He has conducted training seminars on OSHA, which he says is considered the minimum safety standard, and ASME, which is considered the practice in the crane industry as it is written by professionals in the industry who meet about twice a year and update the standard every five years (Tr. 1014-16; Resp. Ex. U). Mr. Miller has operated all types of mobile cranes (Tr. 1015). He has also operated cranes in White Plains, New York, but not in New York City (Tr. 1019). Mr. Miller has “somewhat” of a working knowledge of the LR 1300 because he conducts crane inspections, post-assembly inspections and annual inspections. He enters the cranes and operates them to make sure that they are operating well (Tr. 1020). Thrice before, he testified as an expert (Tr. 1016). Mr. Miller and Mr. Holmes went to the Brooklyn Navy Yard where they spent about two and a half to three days with the entire investigating team, measuring and inspecting the damaged - 34 - components of the crane (Holmes: Tr. 933; Miller: Tr. 1021). They both disagreed with petitioner’s experts that respondent was the root cause of the accident. While noting that the stowage plan provided no measurements or configurations, Mr. Holmes articulated that if there had been a plan to bring the crane down, the outcome would have been different (Tr. 964, 1003- 05). Mr. Miller’s disagreement with petitioner’s experts was based on his assessment that there was a severe lack of planning by several parties involved, namely, the engineer, the contractor, and the DOB plan examiner, because there was no plan to lay the crane down in an emergency, there were no permits and it seemed unlikely that in New York City, one could just make a call to say “we’re laying this thing down across Broadway and we’re going to shut off Broadway for, for the night, or for however long it took” (Tr. 1023-24, 1028). Mr. Miller described the plans submitted by the engineer to DOB as insufficient and incomplete after comparing it with the previously mentioned job application submitted by the same engineer for work to be done at 75 Rockefeller Plaza, New York, using a comparable crane, the Liebherr LR 1300SX, the stowage plan for which showed the crane laid flat and also displayed dimensions (Tr. 1027; Resp. Ex. II). He was also convinced that use of a different crane could have prevented the accident. He explained that a crane with a retractable boom would have been less complex to stow and the only permits necessary would have been one for the block on which the crane was positioned (Tr. 1028-29). Mr. Miller favored leaving the crane erected as the better option. He explained that at a seminar in Amsterdam, the Liebherr design engineer delivered a two-hour presentation on why cranes with long booms should not often be laid down, and explained that immeasurable stress is caused on the wire ropes and the boom itself, making the latter inclined to buckle (Tr. 1029-30, 1037). He disagreed that the only way to secure the crane was to boom it down at night and opined that leaving the crane boomed up made it much stronger than trying to lay it down (Tr. 1037). As part of his work experience on wind farms in Colorado, Wyoming and Texas, on a regular basis, cranes with long booms are always left erected and turned against the high winds (Tr. 1030). Mr. Miller testified that based on his experience and his knowledge of what it takes to operate a crane such as the LR 1300, he found respondent to be adept at and familiar with the crane that he was operating (Tr. 1023, 1040). He opined that respondent left the crane erected in - 35 - a secure position. Following conversations with respondent, he also maintained that on the morning of the accident, respondent attempted to lay the crane down flat. When asked about respondent’s admission during his DOI interview that it was his intention to jack-knife the crane, Mr. Miller stated that the jack-knife position must first be achieved before the crane can be laid to the ground (Tr. 1047-48). Mr. Miller also testified that under the 2014 publication of ASME standards, the responsibilities of crane operators exclude hazards or conditions that are not under the operator’s direct control and that adversely affect lift operations (Resp. Ex. O). He articulated that such hazards would include lifting loads that are too heavy, lifting loads where the weight is unknown or the receipt of instructions that may not be feasible. Hazards could also include planning that had been in place before the operator was retained for the job (Tr. 1033). ASME identifies the operator’s responsibility as “directly control[ling] the crane’s functions,” which Mr. Miller interpreted as “he pulls the levers” (Tr. 1036, 1042-43; Resp. Ex. O). Under ASME, the lift director oversees directly the work being performed by a crane and the rigging crew. The lift director’s responsibilities include “addressing safety concerns raised by the operator or other personnel and being responsible if he decides to overrule those concerns and directs crane operations to continue” with the additional caveat that “in all cases, the manufacturer’s criteria for safe operation . . . shall be adhered to.” The site supervisor exercises supervisory control over the work site on which a crane is being used and over the work that is being performed at the site. The site supervisor, who may be the same as the lift director, is responsible for traffic control as necessary to restrict unauthorized access to the crane’s working area. Mr. Miller agreed that if respondent requested to lower the boom down on the eve of the accident and was denied, the lift director or contractor would be responsible. He identified Mr. Galasso as the lift director (Tr. 1033-36; Resp. Ex. O). Mr. Miller was unaware that New York did not have a lift director’s license until 2017 but as far as he was concerned, it did not change the ASME requirements (Tr. 1043-44). Mr. Miller acknowledged that while the operator directly controls the crane’s functions, he must also be aware of wind conditions, and if he had any concerns, they should have been brought to the attention of others at the job site (Tr. 1044). He believed that respondent had called the lift director, Brent Graham, on the morning of the accident, and told Mr. Graham that the wind was increasing and they needed to get the crane down (Tr. 1045). He further believed - 36 - that Mr. Galasso had acquiesced in bringing down the crane on the morning of its collapse and had dispatched personnel to clear the streets in preparation (Tr. 1049-50). Mr. Miller was under the impression that weather conditions were fair on the morning of the accident. He therefore posited that even if respondent had boomed the crane down the previous evening, he would have boomed it up on the morning of the accident and proceeded to work (Tr. 1038-39). Mr. Holmes opined that booming the crane up and down places stress on the crane while laying it down exposes it to potential vandalism (Tr. 1008-09). He did not dispute that when the crane is not operating, laying it down would be the safest position, but he suggested that leaving it erected as well as jack-knifing it and using counterweights to secure the jib to prevent it from moving side to side was also an option (Tr. 963-64). Mr. Holmes agreed that a crane operator is required to be aware of wind conditions at all times and that waiting for the winds to reach a high level before lowering the crane is imprudent. He knew that the manufacturer’s specifications dictated that the crane should be laid down in a parked position prior to a wind weather event and expressed that booming down the crane on the eve of the accident would have been a better choice and would have prevented the accident had the means existed to do so in the sense that the necessary arrangements for traffic and doing all that was required to lay down 565 feet of boom on a street in New York City had been made. But he saw no evidence that such arrangements had been made (Tr. 989, 991, 1007, 1009-10). Likewise, he saw no indication that respondent had expressed a desire to lay the crane down on the eve of the accident and was prevented from doing so (Tr. 991-92). Also, he stated that crane manuals do not normally provide a sequence for how to erect or lower a boom. The operator has to be familiar with the crane (Tr. 1005). Mr. Holmes was aware that respondent had jack-knifed the crane two days before the accident. After speaking with respondent, he learned that a DOB representative had supposedly instructed that the crane be brought down on the morning of the accident but he did not take any independent steps to confirm the veracity of that information (Tr. 990-91, 1006). He was unaware that respondent had intended to jack-knife the crane on the morning of the accident, which would have been contrary to the manual’s instructions that the crane be laid down (Tr. 1011). - 37 -

Before turning to the charges, I must note that the experts for both sides provided convincing testimony from their own perspectives.

PRELIMINARY MATTER Respondent requested that this tribunal draw adverse inferences against petitioner for its failure to preserve and provide documentation (Resp. Brief at 3). In particular, petitioner’s contract with CTS, its expert witnesses, which was valued at $350,000, called in part for bi- weekly reports on the progress of CTS’s investigation (Resp. Ex. KK). The terms of the contract were “strictly limited to the aforementioned scope . . . .” Respondent made a demand for and was not provided with copies of those updates and progress reports. Nor was respondent provided with e-mail exchanges between CTS and MRA, Galasso and Liebherr. Because of the value of the contract, respondent posited that it was unlikely that such a manifest requirement under the contract was ignored by CTS. Resp. Brief at 4. During the trial, I instructed petitioner’s counsel to search diligently for documents requested by and not yet turned over to respondent, and to do so forthwith. Under section 1-33 of this tribunal’s Rules of Practice, discovery disputes must be raised in advance of trial. “[T]he timeliness of discovery requests and responses, and of discovery-related motions, the complexity of the case, the need for the requested discovery, and the relative resources of the parties” shall be among the factors in the administrative law judge’s exercise of discretion. 48 RCNY § 1- 33(d)(2) (Lexis 2018). Here, respondent’s requests for additional discovery arose during the trial when DOB turned over a copy of its contract with CTS, the terms of which motivated respondent’s belated request. Even though petitioner’s counsel represented that she conducted a diligent search and provided respondent with copies of whatever documents she could uncover that were responsive to respondent’s demands, I find it troubling that not one document related to respondent’s request for CTS’s bi-weekly updates was produced. “[T]he taking of an adverse inference for one party’s failure to provide evidence is an extreme remedy which requires a showing of bad faith, intentional destruction of the evidence, or its willful non-production.” See Dep’t of Correction v. Finch, OATH Index No. 652/07 at 12 (Nov. 28, 2006), modified on penalty, Comm’r Dec. (May 24, 2007), modified on appeal, NYC Civ. Serv. Comm’n Item No. CD08-19-M (Mar. 19, 2008). While under New York Law, sanctions for spoliation or the destruction of evidence are appropriate where a litigant, - 38 - intentionally or negligently, disposes of crucial items of evidence before the adversary has an opportunity to inspect them (Kirkland v. New York City Housing Auth., 236 A.D.2d 170, 173 (1st Dep’t 1997)), this tribunal has declined to sanction parties for loss of evidence in the absence of a showing of bad faith or deliberate destruction. Dep’t of Correction v. Strother, OATH Index No. 2160/00 at 20-21 (July 27, 2001). Under New York case law, the party seeking an adverse inference “must make a prima facie showing that the document in question actually exists, that it is under the opposing party’s control and that there is no reasonable explanation for the party’s failure to produce it.” Wilkie v. NYC Health & Hospital Corp., 274 A.D.2d 474 (2nd Dep’t 2000). In this case, there appeared to be no doubt as to the existence of the documents that respondent was seeking since the submission of CTS bi-weekly reports was required by the contract with DOB. Petitioner did not assert that CTS had breached the contract by failing to comply with the terms of the contract, or that the documents were destroyed or even lost, leading me to conclude that petitioner’s failure to produce the documents was the result of bad faith. Accordingly, I find that respondent is entitled to an adverse inference that CTS’s weekly updates which DOB failed to produce contained information that may have diluted the strength of its case against respondent. Respondent also requested that adverse inferences be drawn for CTS’s failure to interview under oath, the DOB plan examiner who approved the job, DOB Inspector Meyer, and John Moran of MRA. Resp. Brief at 4. This request sounds in missing witness testimony. I do not find that CTS’s failure to interview Yongy Narantika, the DOB plan examiner who approved the plans, and DOB Inspector Daniel Meyer, warrants an adverse inference. “The failure of a party to call as a witness an available person under his control who is in a position to testify concerning a material fact creates an adverse inference that the witness would not have controverted material testimony adverse to the party who failed to call him.” All in One Bus. Prods. v. Scarangella & Sons, Inc. 33 Misc.3d 1209(A) (County Ct. Suffolk Co. 2011) citing Fisch on New York Evidence, § 1126 (2nd ed. Lond Publications 1977, 2008). An adverse inference is not appropriate where the prospective witness is equally available to the opposing party. Id.; Prince, Richardson on Evidence § 3-140 (Lexis 2008). Here, petitioner indicated at trial that Mr. Narantika was no longer employed by DOB, but that he was employed by another City agency. While Mr. Narantika’s testimony may have - 39 - been probative of some of respondent’s defenses, there was no indication that respondent attempted to locate and/or seek a subpoena for Mr. Narantika to testify at trial. In the case of Inspector Meyer, petitioner produced him for trial and respondent availed himself of the opportunity to cross-examine him. Therefore, I find that adverse inferences are not appropriate for CTS’s failure to interview these two witnesses. Finally, respondent did not make clear to this tribunal, what the likely value of Mr. Moran’s testimony would have been. Thus, I decline to draw an adverse inference for CTS’s failure to interview him. Even though I decline to draw adverse inferences for CTS’s failure to interview individuals who played integral roles in the submission of the crane job application to DOB and its approval, I found that failure to be troubling. While CTS claimed that it was only charged with uncovering the ultimate cause of the crane collapse, I got the impression that its investigation was focused on respondent to the exclusion of others. I turn now to the first set of specifications in each of the three charges.

CHARGES 1-3 (Specifications 1 to 3) In Specification 1 of Charges 1 through 3, DOB alleged that on February 4, 2016, respondent failed to follow the manufacturer’s instructions of laying the boom down prior to a wind event, in violation of section 3301.1.3 of the Building Code. In Specification 2 of Charges 1 through 3, DOB alleged that the same conduct as alleged in Specification 1, violated sections 3319-01(p)(2)(iii) and (x) of title 1 of the RCNY. In Specification 3 of Charges 1 through 3, DOB alleged that on February 4, 2016, respondent failed to lower the boom and jib to the ground or otherwise fasten the boom securely, in violation of section 3319-01(p)(2)(vi) of the RCNY. I find that Specifications 1 to 3 of Charges 1 to 3 have been sustained. Chapter 33 of the Building Code governs “the conduct of all construction or demolition operations with regard to the safety of the public and property” (BC 3301.1), and specifically provides that: All equipment shall be used in accordance with the specifications of the manufacturer, where such specifications exist, and the requirements of this code. Where there is a discrepancy, the stricter requirement shall apply. BC 3301.1.3. - 40 -

Sections 3319-01(p)(2)(iii) and (x) of the RCNY provide that “[t]he operator shall be responsible for the operation of the crane or derrick hoist” and requires the operator to “familiarize himself with the equipment and its proper care . . . .” 1 RCNY §§ 3319-01(p)(2)(iii), (x) (Lexis 2018). Section 3319-01(p)(2)(vi) of the RCNY provides that when a mobile crane is being left overnight “ground chocks shall be set and crane booms shall be lowered to ground level or otherwise fastened securely against displacement by wind loads or other external forces.” 1 RCNY § 3319-01(p)(2)(vi). Section 4.23.2 of the Liebherr manual directs that for long work interruptions, the boom must be completely laid on the ground (Pet. Ex. 14 at Ex. F). The manual defines a long work interruption to include leaving the crane overnight. Section 5.7 of the Liebherr manual for the LR 1300 describes the permitted park position of the boom and outlines the following step-by- step procedure that the operator must follow in the event of wind: Reduce the working load; Place the boom in its parked position; Lay down the boom (Pet. Ex. 14 at Ex. F). There is no dispute that respondent did not lay the crane down on the eve of the accident. Petitioner argued that the manufacturer’s instructions required the crane operator to remain informed of weather conditions at all times, and required a crane of the configuration of this LR 1300 to be placed in a parked position, by laying down the boom and jib when the wind speed was 15.66 miles per hour or greater. Further, the manual directed that the manufacturer be contacted for special protective measures if it is noticed during planning that the boom cannot be set down completely due to lack of space and there is danger of a storm. Thus, respondent was duty-bound to know about the impending bad weather which he appeared to disclaim knowledge of. Pet. Brief at 14-16. Also, petitioner questioned respondent’s and Mr. Mazzacco’s claims that Inspectors Meyer and Hamilton had authorized leaving the crane erected overnight. Petitioner maintained that respondent had not previously revealed this in his interview and opined that it was hard to fathom that respondent would not have questioned the inspector(s) when their instructions contravened the directives in the crane manual which respondent claimed to have reviewed prior to commencement of operations. Pet. Brief at 13-16. Finally, petitioner argued that contrary to respondent’s experts’ claim that lack of planning was the root cause of the accident, respondent was the one operating the levers and - 41 - controlling the crane’s functions, as his experts also maintained. Accordingly, lack of planning was not the proximate cause of the accident and had no impact on respondent’s operation of the crane. Pet. Brief at 33-34. Petitioner also maintained that it is not DOB’s responsibility to ensure that plans submitted to it for review and approval are safe for the residents of New York City. Instead, as a regulatory agency, DOB has a mandate of enforcing compliance with the Construction Code and the City’s rules and regulations (Tr. 1351). Respondent blamed DOB, MRA and Galasso for his failure to follow the manufacturer’s specifications to lay the crane down in anticipation of a wind/weather event. Respondent suggested that because petitioner had sent out a wind advisory the previous week, it somehow contributed to the accident because it did not send out one on February 4, 2016 (Tr. 1342). Respondent introduced copies of e-mails to establish that well after DOB approved the plans on January 12, 2016, MRA did not have directions for laying down the crane. The e-mails show that on January 7, 2016, prior to DOB’s approval of the job at 60 Hudson Street, Mike Salsille from MRA e-mailed Markus Wachter at Liebherr, requesting the “jack-knife” stowage condition for the LR 1300 with three different configurations: all with the boom at 194 feet, but with different jib lengths – 371, 322 and 351 feet. Mr. Salsille informed Mr. Wachter that MRA had two upcoming projects in New York City and that laying down the boom was not the ideal stowage condition. Mr. Wachter asked for the crane’s serial number in order to have exact configurations calculated by Liebherr’s engineering department (Resp. Ex. D at LNC 001301, 001310). Liebherr’s engineering department provided the calculations to Mr. Wachter on January 15, 2016, after DOB had approved the 60 Hudson Street job (Resp. Ex. E at 2). There was no evidence that they were forwarded to MRA. Besides the contention that MRA did not have directions for laying the crane down, respondent claimed that it was never the contractor’s intent to have the crane lowered each night because Galasso only obtained permits to close the surrounding streets for the initial build, the reconfiguration and disassembly. Respondent further claimed that the engineer failed to obtain from the manufacturer a jack-knife procedure adapted to the site conditions. Hence, the stowage plan which the engineer and contractor submitted showing the crane jack-knifed towards Hudson Street was a physical impossibility and was submitted simply to satisfy DOT and to obtain approval from DOB. Resp. Brief at 7-8. Respondent added that by comparison with other plans submitted by the same engineer for a comparable crane, the absence of specifications on the 60 - 42 -

Hudson Street plan made it woefully inadequate, as was the crane manual, and that respondent was left to rely on a manual which he could not know was deficient. Resp. Brief at 8-9. In addition, respondent argued extensively as to the plan examiner’s role and whether the job application for 60 Hudson Street should have been approved. Resp. Brief at 20-21. Respondent further argued that Inspector Meyer had authorized leaving the crane erected and had indicated to respondent only that the crane needed to be jack-knifed in severe weather conditions and that he had complied with those instructions (Tr. 1338; Resp. Brief at 10).

Respondent’s Failure to Lower the Boom Prior to a Wind/Weather Event Constituted Negligence Though many errors contributed to the tragedy that occurred here, those are not defenses to the charges. Respondent is ultimately responsible for operation of the crane. See 1 RCNY § 3319-01(p)(2)(iii). It is not a defense that DOB approved plans for a crane that might not have been the most appropriate crane for the job, that his bosses were not inclined to close down the street or even that other crane operators did not lay their cranes down every night and DOB was aware of or approved it. The plans here instructed the operator to stow the crane according to the manufacturer’s instructions in severe weather conditions. Respondent’s argument that the engineer and contractor had no intention of having the crane lowered each night was supported by the absence of permits for each night of the job and by Mr. Galasso’s own testimony. Even DOB’s Mr. Omran concurred with this conclusion (Tr. 634-35). Moreover, respondent’s testimony that Inspector Meyer authorized leaving the crane erected was credible, given the inspector’s testimony that leaving the crane boomed up overnight would be safe if weather conditions permitted proper stowage, and it would meet with DOB approval. That cranes are left erected overnight was also supported by Brent Graham’s testimony before BSIU. However, the Building Code is clear in its requirement that equipment is to be used in accordance with the manufacturer’s specifications. And there is no dispute that the Liebherr manual for the LR 1300 required that the boom be completely laid down for long work interruptions which included leaving the crane overnight. Hence, the practice of leaving a crane erected where the manufacturer’s specifications require otherwise is imprudent and in violation of the Building Code and the manufacturer’s specifications. - 43 -

There was no evidence that DOB inspectors approved leaving the crane erected specifically on the eve of a wind event. To the contrary, respondent and his witness Mazzacco testified that Inspector Meyer had cautioned that the crane should be lowered in the event of winds in excess of 15 miles per hour. An extract from the Liebherr manual for the LR 1300 contained a table showing maximum wind speeds for different configurations of the crane. For the configuration of the crane at issue here, the maximum wind speed displayed was 15 miles per hour or seven meters per second (which in precise figures equaled 15.66 miles per hour) (Pet. Ex. 14 at Ex. F). Petitioner’s proof that winds in excess of 15.66 miles per hour were predicted by the National Weather Service for February 5, 2016, was incontrovertible. At around noon on February 4, the National Weather Service had issued its forecast for the following day, that the morning would be cloudy and that north winds of 15 to 20 miles per hour were expected (Pet. Ex. 14 at B). Thus, respondent should have been aware on February 4, that a wind event was forecast for the next day. The testimony as to whether or not respondent knew of the impending gusts of wind in excess of 15.66 miles per hour was inconsistent. During his initial, more contemporaneous interview, Mr. Mazzacco claimed that respondent was present at a meeting on Thursday (February 6, 2016) at which time the bad weather forecast for the following day was discussed. At trial, he stated that respondent was physically present at the site but was in the cab and was a little distance away from the group that was discussing the weather. This tribunal has often held that contemporaneous statements evince reliability. See Transit Auth. v. Victor, OATH Index No. 799/11 at 4 (Mar. 3, 2011), aff’d, NYC Civ. Serv. Comm’n Item No. CD-11-52-A (Aug. 9, 2011); Human Resources Admin. v. Ali, OATH Index No 2380/09 at 16 (July 20, 2009), adopted, Comm’r Dec. (Sept. 22, 2009); Dep’t of Sanitation v. Sanders, OATH Index No. 558/09 at 4 (Jan. 5, 2009); Dep’t of Correction v. Boyce, OATH Index No. 789/97 at 14 (July 9, 1997), aff’d, NYC Civ. Serv. Comm’n Item No. CD 99-75-SA (July 19, 1999). However, in this case, it was not clear to me that Mr. Mazzacco’s testimony before BSIU was as reliable as it should have been for the following reason. Brent Graham’s testimony before BSIU, that site safety meetings were held each morning but that respondent did not attend because he was not permitted to leave the crane lent support to Mr. Mazzacco’s testimony at trial (not to his more contemporaneous statements before BSIU) that although physically present at the site, respondent was in the crane and was not included in the meeting that was held to discuss the weather. It also corroborated - 44 - respondent’s testimony that he was in the crane when he saw the Galasso men talking to each other on the street, in front of the crane, and about 40 feet away from him. I found compelling, Mr. Graham’s statement before BSIU that everyone at the site knew of the incoming inclement weather and as a result, they planned to have all the lifts completed on Thursday. It would seem logical that the work schedule and the reason for any changes would have been shared with respondent, who was integral to the completion of the lifts. Mr. Graham further stated before BSIU that he had discussed the impending weather with respondent but noted that they did not contemplate laying the boom down as they did not believe that the wind would become that extreme. He also indicated that cranes normally remain erected (Pet. Ex. 16 at 36-40). This seemed credible because, as one of the site safety coordinators, Mr. Graham’s statement, far from being self-serving, implicated him in an unsafe practice which had detrimental consequences in this case. Even absent Mr. Graham’s statements to BSIU, I found it highly unlikely that respondent would not have been aware of the impending bad weather for Friday, the day of the collapse. By his own account, Steve Mazzacco came over and got onto the catwalk of the machine and told respondent that he, Joe Valenza and Brent Graham were looking at the wind forecast for the following morning and wondered if they should be concerned. There would have been no need for such concern to be brought to respondent’s attention unless the predicted winds were expected to exceed the crane’s tolerance level, that is, 15.66 miles, or would have been so severe that it would have caused the crane’s oiler and others to be concerned. Even though respondent later denied that anyone had raised concerns about the weather with him, I found his denial to be incredible. Further, he produced no records to show that the weather apps on his phone provided inaccurate forecasts, and it defied logic that the apps on the phones of other workers were the only ones that predicted severe weather for the following day. Respondent’s suggestion that it was petitioner’s responsibility to send out wind advisory notices to crane operators was vacuous. But even if that were remotely petitioner’s responsibility, it was more incumbent on the crane’s operator to monitor the weather. Thus, I find that on the eve of the crane’s collapse, respondent was aware of the impending wind/weather event which was likely to exceed the crane’s tolerance level and should have taken particular precaution by lowering the crane to the ground. Respondent often cited to ASME, which makes it the operator’s responsibility to consider the recommendations of the - 45 - manufacturer for securing the crane when a local weather storm warning exists. ASME B30 (11) 5.3.1.3.3.1 (x)(6) (Resp. Ex. A). Even though respondent seemed to rely significantly on the distinctions between the job responsibilities for the crane operator, lift director and site supervisor, as delineated under ASME, there is no denying that ASME places direct control of the crane’s functions squarely with the operator. Respondent’s claim that other operators did not lower their cranes each night is not a defense. Dep’t of Buildings v. Geer, OATH Index No. 1288/13 at 23 (Dec. 18, 2013), adopted, Commissioner Decision (Dec. 20, 2013), quoting Trimarco v. Klein, 56 N.Y.2d 98, 106 (1982), (“common practice or usage is still not necessarily a conclusive or even a compelling test of negligence.”). Rather, “the question in each instance is whether [the custom] meets the test of reasonableness.” Id at 107. Regardless of the practice of other operators to leave a crane erected overnight, respondent’s actions here cannot be deemed to satisfy a test of reasonableness. While the stowage plan was not the only document in the CN package which provided directions to respondent regarding stowage, respondent’s criticism of the stowage plan is well placed. Nonetheless, respondent cannot use the deficiencies of the stowage plan to excuse his failure to lower the crane on the eve of a wind event. At the onset of the job, respondent recognized that the stowage plan was inaccurate because he had paced the distance and knew that the crane could not be jack-knifed towards Hudson Street. While he maintained that he had alerted Mr. Valenza about the shortcoming of the drawing, and had expressed to Mr. Galasso, his concern about the absence of measurements on the drawing, he did nothing further after Mr. Galasso appeared unconcerned. In fact, armed with the knowledge of the inadequacies of the stowage plan, respondent proceeded with the job. This brings me to the undisputed evidence that there was an absence of step-by-step directions in the manual for jack-knifing the crane. Mr. Mazzacco testified that respondent did things by the book as he was always in possession of the crane manual. In addition, respondent, who professed to have read the manual regarding the stowage of a crane with such a configuration, should have been aware that step-by-step directions for stowage were lacking and should have sought directions even prior to placing his hands on the levers of the crane. Yet, having no previous experience with a crane of such magnitude and having no manufacturer’s directions on which to rely, respondent decided to jack-knife the crane on the Wednesday - 46 - preceding the collapse, after expressing concern about the wind. Although he was successful, jack-knifing the crane in the absence of a proper plan was risky. Respondent’s experts did not persuade me that a lack of planning caused the crane’s collapse. To be certain, multiple steps were overlooked by the engineer, the contractor and the plan examiner in the prelude to the job. In that regard, petitioner’s response that as a regulatory agency, it is not responsible for ensuring that plans submitted to it for review and approval are safe for the residents of New York City appears to run counter to its profile and mission identified on its website that: The Department of Buildings promotes the safety of all people that build, work, and live in New York City by regulating the lawful use of over one million buildings and construction sites across the five boroughs. With a focus on safety, service, and integrity, the Department enforces the City’s Construction Codes, Zoning Resolution, and the New York State Multiple Dwelling Law.

The Department enforces compliance with these regulations and promotes worker and public safety through its review and approval of building plans, permitting and licensing functions, and inspections.10 Responsibility for ensuring that plans submitted are safe for New York City residents does not suggest that petitioner’s plan examiners are required to visit a site to make sure that an architect’s or engineer’s drawings are without flaws. But it does mean that common sense inquiries should be made by the plan examiner when obvious documents are missing from an application, such as permits for street closures. After all, the examiner is the one who ultimately approves the CN package. DOB cannot expect to rise above the fray and initiate charges for failing to lay a crane down on a nightly basis, when the plan which it approved lacked street closure permits that would facilitate laying the crane down. It would seem to be in DOB’s best interests if their crane inspectors are trained to review not just assembly and disassembly drawings, but also stowage plans. While the plan examiner is not expected to visit the site, the crane inspectors who conduct field visits should be charged with the responsibility of making sure that the stowage plan is achievable, especially in light of the plan examiner’s approval. Even so, I was not convinced that given a proper stowage plan, respondent would have lowered the crane on the eve of its collapse. His expert, Mr. Holmes, conceded that laying the crane down on the eve of the accident would have been a better choice and would have prevented the accident. His other expert, Mr. Miller, agreed that if respondent had requested to

10 http://www1.nyc.gov/site/buildings/about/about.page - 47 - lower the crane on the eve of the accident and was denied, Mr. Galasso, as lift director, would have been responsible for the accident. But, as Mr. Holmes testified, he saw no indication that respondent had expressed a desire to lay the crane down on the eve of the accident and was prevented from doing so. Further, while it is possible that respondent was concerned about incurring Mr. Galasso’s wrath had he suggested lowering the crane on the eve of the wind event, respondent did not assert that that was the case. In sum, I find that the flawed plans which were approved by the DOB plan examiner did not impact on respondent’s decision to leave the crane erected on the eve of its collapse. But they no doubt placed respondent (who had identified deficiencies in the plans) in the difficult position of having to decide whether to forge ahead with the job or decline to touch the crane’s levers until the stowage plan was corrected, at the risk of foregoing income if he was replaced with another operator. And the risk of being replaced by another operator was no doubt realistic given the shortcuts taken by the engineer and contractor, who admitted before BSIU that he did not think that anyone had realized or detected the error in the stow plan, that the crane was pointed in the direction of Hudson Street. Regardless, respondent accepted the job along with the significant and serious responsibilities attached thereto. Respondent’s recognition that this was possibly the largest crane configuration in New York City, and his acknowledgement that he had never operated a crane of its size made him even more obligated to exercise extra caution. His decision to proceed with the job in spite of the perceived defects, was his first misstep. Leaving this particular crane erected overnight on February 4, 2016, when strong winds were expected the following day was his second, and was in contravention of the applicable manufacturer’s instructions. Trying to lower the crane in the midst of a wind/weather event was his third error. Compliance with applicable rules and regulations is not optional. A licensee’s failure to do so constitutes negligence. See Gonzalez v. Medina, 69 A.D.2d 14, 17 (1st Dep’t 1979) (“The law is well settled that the unexcused failure to observe a statutory standard is negligence”). The Building Code required that the crane be operated in accordance with the manufacturer’s specifications and the requirements of the Code. The operation of the crane is the operator’s responsibility and he was required to familiarize himself with the crane and the governing instructions. The manufacturer required that the crane be placed in a parked position by laying the boom flat in the event of wind. For this particular configuration of the LR 1300, the wind - 48 - tolerance level was 15.66 miles per hour. The National Weather Service predicted winds of 15 to 20 miles per hour for February 5, 2016, a range which exceeded the crane’s tolerance level of 15.66 miles per hour. The crane manual further directed that the manufacturer be contacted for special protective measures if it is noticed during planning that the boom cannot be set down completely due to lack of space and there is danger of a storm. While respondent may argue that he was not part of the initial planning, this is not a persuasive argument because of his initial recognition of the defects. Undoubtedly and unfortunately, this placed the heaviest burden upon the person at the lowest end of the totem pole, respondent. But he was in contact with one manufacturer’s representative on the first day of the job when he had experienced problems with the computer readings vis-à-vis load lifting. There was no indication that he raised his concerns with that representative. What cannot be overlooked is that respondent was the person who made the ultimate determination as to the crane’s operation. Accordingly, by failing to lower the crane on the eve of a weather event, when winds were expected to gust in excess of the crane’s tolerance level, I find that respondent failed to comply with the manufacturer’s directives for the crane, and in so doing, failed to comply with section 3301.1.3 of the Building Code, which requires that all equipment to be used in accordance with the specifications of the manufacturer. Specification 1 of Charges 1 through 3 is therefore sustained. By failing to lower the crane on the eve of a wind/weather event, respondent also failed to comply with sections 3319-01(p)(2)(iii) and (x) of title 1 of the Rules of the City of New York, which places responsibility for the safe operation of the crane on its operator and requires the operator to familiarize himself with the crane. Respondent’s failure constituted negligence, as charged. In so far as Specification 3 of Charges 1 through 3 is concerned, the section DOB’s rules which respondent is alleged to have violated on February 4, 2016 (as charged) appears to be somewhat contrary to the manufacturer’s instructions for the LR 1300, which requires the crane to be laid down overnight. On the other hand, by providing that when a mobile crane is being left overnight “ground chocks shall be set and crane booms shall be lowered to ground level or otherwise fastened securely against displacement by wind loads or other external forces,” section 3319-01(p)(2)(vi) appears to give the operator the option of either lowering the crane to the ground or fastening it securely against displacement. Because the manufacturer’s standard is - 49 - stricter, it is the applicable standard. Accordingly, respondent did not have the option of “otherwise fasten[ing] securely against displacement . . . .” At trial Inspector Meyer conceded that the Liebherr LR 1300 did not require ground chocks to prevent it from accidentally tipping over except for when the boom was being lowered, and Mr. Kohler maintained that ground chocks are not applicable to the LR 1300. But regardless of whether or not ground chocks are applicable to the LR 1300, the fact is that respondent did not lower the crane to the ground on February 4, 2016. In that regard, this specification is also sustained.

CHARGES 1 – 2 (Specification 4) The fourth specification of charges 1 and 2 alleges that on February 5, 2016, respondent lowered the boom to an angle of 72 degrees with a jib angle of approximately 49 degrees, which made the crane unstable and caused it to collapse. Petitioner bears the burden of proof by a preponderance of the credible evidence. “In a civil case, the party with the burden of proof must prove the case by a fair preponderance of the evidence. If the evidence is equally balanced, or if it leaves the [trier of fact] in such doubt as to be unable to decide the controversy either way, judgment must be given against the party upon whom the burden of proof rests.” See Human Resources Admin. v. Oomen, OATH Index No. 1267/05 at 12 (July 29, 2005), quoting, Prince, Richardson on Evidence § 3-206, at 110 (11th ed. 1995). See also R.A. Barker and V.C. Alexander, Evidence in New York State and Federal Courts § 3:9, at 90 (West 2001) (“The modern trend is to define preponderance as the ‘more likely’ or ‘probable’ account of what happened”). Here, petitioner offered a very specific allegation as to the cause of the collapse – a boom angle of 72 degrees and a jib angle of 49 degrees. Petitioner’s theory relied on several questionable and unproven assumptions. Though respondent’s actions may have contributed to the cause of the collapse by: working with equipment at a configuration that he had never previously handled; failing to lay the boom down on the night before a wind event; and attempting to jack-knife and then lower the boom in the midst of a snow and wind event, petitioner failed to prove the specific allegation that respondent lowered the boom to 72 degrees and the jib to 49 degrees. - 50 -

There was no material dispute regarding the crane’s computer readings, the wind measurements taken at the airports, and the approximate length of steel rope taken at the Brooklyn Navy Yard, all of which petitioner’s experts considered in arriving at its determination of the boom and jib angles. But first, petitioner’s experts ruled out other causes.

The YouTube Video of the Crane Collapse It is unclear at what point in its investigation CTS reviewed the video of the crane’s collapse and whether or not its review of the video shaped its investigation. According to Mr. Kohler, the video showed that the collapse started slowly and then the crane plunged rapidly. He suggested that respondent must have been confused and pulled the joystick for the boom instead of the joystick for the luffer. He could detect no structural failure because no suspension or cable was broken. He explained that if there was a rope failure, the jib would have fallen and the main boom would have remained standing with the machine house intact, because the ropes hold and adjust the angle of the boom (Tr. 845-46). Instead, the whole 600,000 pounds of the machine house plus counterweights flipped over on its back, leading to Mr. Kohler’s prognosis that the crane’s brakes had not failed and that the crane had experienced a stability problem not a structural one (Tr. 725-27). He claimed that after CTS made calculations, “that was one scenario which we thought that’s what could have happened” (Tr. 846).

Stability of the Crane A crane has a resisting moment and an overturning moment or tipping point which is affected by the weight of the crane and its configuration.11 If the overturning moment is greater than the resisting moment, the crane becomes unstable (Hegan: Tr. 243-44; Kohler: Tr. 739, 780).

Petitioner’s Evidence on Stability To assess the stability of the subject crane, CTS obtained weights of the component parts for the LR 1300 from Liebherr. It then weighed the counterweights and the jib and boom sections of the crane at the Brooklyn Navy Yard. Mr. Kohler stated that when a crane is damaged each part cannot be measured or scaled because they are placed together and cut. As

11 Petitioner’s Exhibit 14 at Page 16 of 42 contains a more detailed explanation. - 51 - such, when CTS did a final calculation, there was a five percent difference between their figures and Liebherr’s, which is within the level of tolerance (Tr. 739-40). Petitioner relied on the crane’s computer data and its computerized messages. Mr. Kohler explained that the data readings on the crane’s computer are affected by gravity. Because it was concerned about the accuracy of the computer readings when the crane collapsed, CTS called Liebherr (Tr. 727-28, 785-87). The earliest entry on the report showed that the upper limit switch of the main boom which triggers the end position of the crane was deactivated at an angle of 87.4 degrees on February 4, 2016 (the eve of the accident) at 5:53:33 p.m.12 The system was shut down approximately one minute later, at 5:54:40 p.m. (Tr. 787, 789, 791; Resp. Ex. P at 6 of 6). While Mr. Kohler acknowledged that respondent reported leaving the boom at an angle of 80 degrees, Liebherr informed him that when the crane is boomed down, the computer does not necessarily record the end position (Tr. 790). On February 5, 2016, the computer readings showed that the crane was turned on at 6:49:55 a.m. and the main boom limit switch was activated at the same time. At 6:49:56 a.m., the fall back support main boom limit switch was activated, at which time the main boom was at an angle of 80 degrees, supporting respondent’s statement as to the angle at which he left the boom the previous evening (Tr. 791-92). CTS asked Liebherr about the difference in the readings of the angle of the boom from the time that the crane was deactivated to the next time that it was reactivated and relied on Liebherr’s response that there was no proof that the crane lost 7.4 degrees overnight (Tr. 330-31). CTS did not investigate further because after respondent deactivated the crane at a boom angle of 87.4 degrees, he did not turn the engine off for another minute or so, which would have given respondent enough time to bring the boom down to an angle of 80 degrees (Tr. 332). At 7:26:39 a.m. on February 5, 2016, the crane’s computer readings displayed “entry switch closed (utilization forward: 17.5, backward 0.0).” Mr. Kohler could not offer an explanation for what this meant because CTS “did not focus on . . . on these things because we . . . we focused at that time when it’s actually happened” (Tr. 792). Nor could he offer an explanation for the term “entry switch opened.” Instead, he stated “I think I knew it but I . . . I don’t remember now,” and concluded that it was not important to CTS’s report (Tr. 793). At

12 Both parties’ experts agreed that the crane’s computer clock was one hour ahead of real time (Kohler: Tr. 787-88; Holmes: Tr. 935). - 52 -

8:08:08 a.m. and 8:10:39 a.m., respectively, the entry switch was opened and closed. At 8:14:35 a.m., the computer printout displayed “lml stop, utilization: 100.8.” Lml is the load moment limiter (lml), which reads wind as weight on the crane. The data showed that assembly operation was turned on at 8:14:56 a.m. Mr. Kohler explained that it is common to get to 90 percent of the crane’s load bearing capacity before switching to assembly mode. Otherwise, the normal limit switches would become disabled and shut the crane down (Tr. 800-01, 852-53; Resp. Ex. P at 5 of 6). Between 8:14:35 a.m. and the time that the crane was switched to assembly mode, the data report showed the lml utilization at varying percentages (mainly above 90 percent), which was an indication that the wind sensors on the crane were detecting wind at different strengths, and which had the effect of reducing the lifting capacity of the crane (Tr. 801-03). Mr. Kohler conceded that at 8:14:43 a.m. and 8:14:50 a.m., at which times the data displayed “lml stop” with utilizations of 100.6 and 100.1 percent, respectively, this was an indication that respondent was slowly luffing down the crane (Tr. 803, 820). The data also showed that the crane was at maximum utilization on at least eight occasions between 8:15:09 a.m. and 8:19:58 a.m. On each of those occasions, the lml utilization was less than 110 percent. The significance of the maximum utilization readings was not clearly explained. But Mr. Kohler stated that the percentages of utilization were also affected by the angles of the boom and jib. He explained that if the boom is lowered, it has a big influence on the moment, which is the rotation caused by the load. The same is true if the boom is higher and the jib is more contracted. Snow could have been a factor as well, but when CTS looked at photos, they saw a little snow on the boom but none on the jib (Tr. 801-03, 806-10, 820, 848-50; Resp. Ex. P at 5 of 6). The crane’s computer data also displayed the crane’s radius readings. The radius is calculated from the center of the cab of the crane to the point where the headache ball would drop (Kohler: Tr. 798-99; Holmes: Tr. 942-43; Pet. Ex. 14 at 31; Resp. Ex. R). It is one of the variables used to calculate the angle of the boom or the jib (Tr. 804-06). After the crane was switched to assembly mode up until 8:19:58 a.m., the crane’s computer report showed varying radii distances. Mr. Kohler initially disagreed that the varying distances in the radius could have been attributable to movement of the headache ball in the wind because the machine does not measure the location of the ball which weighs about 1000 pounds. After claiming that the ball does not - 53 - move much in the wind, he later conceded, as did respondent’s expert, Mr. Holmes, that the wind imperceptibly affected the variations in the radius since the up and down movements of the boom impacted the movement of the ball (Kohler: Tr. 811-13, 815-17, 849-50; Holmes: Tr. 944- 45). Mr. Kohler further admitted that given the crane’s configuration with the jib extended to 371 feet, the dynamic of the wind on the jib would also affect the movement of the headache ball (Tr. 818). He did not disagree that when the crane is stopped, normally the load hook has to be in as high a position as possible provided that wind speeds are within normal operating range (Tr. 856). But in the midst of a wind event, respondent’s decision to keep the headache ball as high as possible to avoid the jib swaying and hitting either of the buildings on its sides while attempting to slowly disassemble the crane was contrary to the manufacturer’s instructions which required the ball to be lowered. Mr. Kohler speculated that it was left in place because respondent thought that it was swinging too much. However, had the ball been lowered, the jib angle would have contracted (Tr. 815-16). Mr. Kohler articulated that only if a danger is posed by laying the headache ball down should the operator not lay the boom down (Tr. 857-58). In his opinion, leaving the headache ball elevated worsened the crane’s stability (Tr. 895). A load capacity chart from Liebherr for the LR 1300 showed figures for the jib angle, rope pulley and the load capacities of the crane at varying main boom angles (88, 83 and 75 degrees) and associated radii (Tr. 840; Pet. Ex. 14 at Ex. F; Resp. Ex. Q).13 Mr. Kohler did not dispute that the chart provided guidance as to the load capacity of the crane and what the radius should be at different angles. But he claimed that this was applicable during lifting, not in assembly mode. He insisted that the load capacity chart had nothing to do with the erection and disassembly of the crane and should not be relied upon for the calculation of the radius (Tr. 840, 846-47, 892). CTS estimated the boom and jib angles at the time of the crane’s collapse through an equation devised by CTS and used for the first time, involving measurement of the unspooled ropes. Mr. Kohler explained that hitting the lever would have caused spooling to be released (Hegan: Tr. 336-37; Kohler: Tr. 829-30; Pet. Ex. 14 at J; Resp. Ex. P). With Bay Crane’s assistance, CTS measured the unspooled rope. According to Mr. Kohler: [W]e asked Bay Crane to spray paint the drum so we knew exactly what was on the rope so we determined the rope and we had to cut a rope when they took the crane down because of the . . the

13 See Appendix 3 to this report. - 54 -

damage then everything else in order to remove the debris then we had them clamp them together so . . and Bay Crane did a good job to basically took our direction and measure everything so we . . we helped the evidence so we knew what was on the drum and was off the drum. (Tr. 735-36). Admittedly, CTS knew what they were looking for, so they developed a procedure to turn the drum on the boom and the jib using a forklift to extract the unspooled ropes and laying it out to measure their lengths. By that time, the crane was at the Brooklyn Navy Yard (Tr. 736-37). CTS measured the unspooled rope from the boom drum to the end of the rope. The rope from the luffing drum had been cut in several places. CTS measured what was left on the luffing drum and calculated what should have been left. Mr. Kohler stated that if the boom were at an angle of 80 degrees at the time that the crane collapsed, 86 to 87 feet of rope would have been missing when CTS conducted its measurements. CTS calculated a boom angle of 72 degrees and a jib angle of 49 degrees, a calculation which was done with elongation. Mr. Kohler explained elongation as follows. Steel rope is twisted and it subtly stretches in reaction to the load placed upon it. By measuring this elongation, the stresses in the steel can be determined. He added that common engineering calculations are made regarding steel stretches based on the load. In this case, CTS calculated the weight of the boom and the angle which was exerted in order to arrive at figures for the stress or load in the structural members. CTS then measured how much the steel had stretched. Mr. Kohler further explained that without elongation, the angles on the boom and jib are normally one degree and two degrees higher, respectively. Based on its measurements, CTS developed a chart to show the respective boom and jib angles under conditions of stability and instability (Hegan: Tr. 240-41, 462-63, 475; Kohler: Tr. 737-38, 783- 84, 894; Pet. Ex. 14 at 18).14 CTS’s calculations, which were included with its report, showed that for every degree of boom angle, the steel pendant bars had to expand by about four and a half inches. Mr. Hegan indicated that CTS arrived at a lower angle for the jib based on the elasticity of the pendant bars and the hoist ropes. Mr. Kohler insisted that this was a scientific calculation, not an estimate and that once expanded, these 2.5 x 7.7 centimeters bars would never revert to their original size. But when asked about the collapsed crane’s steel pendant bars which he had measured at the Brooklyn Navy Yard, Mr. Kohler confirmed that they had returned to their original size (Hegan:

14 See Appendix 2 to this report. - 55 -

Tr. 476; Kohler: Tr. 902-05; Pet. Ex. 14 at Ex. I). He further indicated that miscalculations in the elongation values would only account for one or two degrees difference (Tr. 898-99). CTS did not obtain any further calculations from Liebherr to verify whether or not respondent’s reported boom and jib angles were realistic because, according to Mr. Kohler, once lawyers got involved, Liebherr went silent. So CTS relied on its own calculations (Tr. 854-55). CTS initially accepted respondent’s statement that the boom was at 80 degrees (Tr. 328). They obtained the AccuWeather forecast and the wind data and concluded that the winds were not high enough to have blown the crane over (Tr. 727). Thus, they retained Simpson, Gumpertz and Heger, an engineering firm (“SGH”), with whom they collaborated to conduct a sensitivity analysis to determine the impact of wind forces on the crane’s stability. The analysis involved plugging in different boom angles, boom lengths, jib angles, jib lengths and wind speeds to establish the crane’s tolerance levels. SGH went to the Brooklyn Navy Yard where the crane components were secured and took dimensions of the steel structures, including the boom and jib sections, boom head, jib heel and jib head. SGH also reviewed Liebherr’s manual for its stability calculations for the crane in its particular configuration on the day of the accident. SGH then verified the wind areas (Tr. 740-41; Pet. Ex. 14 at 17-18). In its report, CTS noted that it was extremely difficult to estimate the wind speed around the crane at the time of its collapse because of the topography (Pet. Ex. 14 at 27, 28). The report included a chart of the sensitivity analysis showing different boom and jib angles and wind speeds. CTS/SGH made calculations based on different combinations of boom and jib angles to determine what wind force could have been sustained or at which point the crane would have become unstable. The chart, which was color-coded to show stable versus unstable conditions for the crane, demonstrated that at a boom angle of 73 degrees and jib angle of 51 degrees, winds of 26 miles per hour would have toppled the crane, while at a boom angle of 72 degrees and a jib angle of 49 degrees, the crane would have been so unstable that a wind of only four miles per hour would have toppled it. Mr. Kohler stated that in this case, the wind came at two angles “one parallel to the crane and one perpendicular to the crane.” He insisted that the results of the sensitivity analysis contradicted respondent’s initial statement to CTS that respondent had the boom angle at 80 degrees and the jib angle at 45 degrees on the morning of the accident because according to the chart, at those angles it would have taken winds of 52 miles per hour from the rear to blow the crane over. Front wind was not considered to be a factor, but rear winds could - 56 - tip the crane forward in the direction of the boom. CTS consulted AccuWeather, which confirmed that there were no wind gusts of 52 miles per hour on the day of the accident. CTS therefore concluded that respondent had the boom at an angle of 72 degrees. Mr. Kohler speculated that respondent was nervous on the morning of the accident because it was snowing and the wind was increasing, making him boom down lower than 80 degrees, which directly caused the crane to be toppled by light wind (Tr. 742-47, 794, 797, 814, 817, 889-90; Pet. Ex. 14 at 18, 28). Mr. Kohler admitted that CTS calculated its wind values based on numbers reported from JFK and Newark Airports,15 which are a significant distance from the site of the crane collapse (Tr. 778). But in addition to consideration of the distance, CTS contemplated how the wind would be impacted by the heights of the buildings surrounding the crane. Through its own calculations, CTS tried to deduce a logical explanation for what had occurred. They spent hours on calculations relying on respondent’s statements that the boom was at 80 degrees but they could not arrive at a wind that was strong enough to blow the crane over. Eventually, based on stability and wind momentum, they concluded that a wind of 10.5 miles per hour was the equivalent of about four miles per hour from the crane’s rear, and this was all that was needed to tip the crane over16 at a boom angle of 72 degrees and a jib angle of 49 degrees (Tr. 778-79, 781- 83). Based on the sensitivity analysis chart showing boom and jib angles and wind speed, Mr. Kohler opined that theoretically, if the boom and jib were at angles of 80 degrees and 55 or more degrees, respectively, the crane, in an erect position, would have been able to withstand winds in excess of 58 miles per hour from its rear (Tr. 795-96; Pet. Ex. 14 at 18).

15 A chart in AccuWeather’s report to CTS shows that between 5:30 a.m. and 9:00 a.m. on the morning of the collapse, winds gusts recorded at Robbins Reef in Newark, La Guardia and JFK Airports and Central Park ranged from 18 to 38 miles per hour, with the highest reading recorded at La Guardia (Pet. Ex. 14 at B). 16 During cross-examination, when inquiry was made into the distance from which the wind values on which CTS based its calculations were taken, Mr. Kohler replied: That was based from AccuWeather, but I’ll tell you what it’s -- we -- we had the same thoughts. So we focused it first on the wind and we did all kind[s] of calculation[s]. We were thinking, making models on, but once we did the calculation we found out it takes only four miles wind to tip it over at that particular it was only irrelevant. Because if it takes four miles -- so who cares if it – the wind is – is vari -, it’s . . . (Tr. 779). - 57 -

Respondent’s Evidence on Stability Respondent’s experts offered an alternative scenario, challenging the crane’s computer data, as well as CTS’s method of arriving at the boom and jib angles through rope length calculations. Respondent’s experts relied on respondent’s contemporaneous statements to DOB following the crane’s collapse, regarding the boom and jib angles. Mr. Holmes reviewed the data captured on the crane’s computer immediately before and after its collapse (Tr. 935; Resp. Ex. P). He noted that respondent turned the machine on at 6:49:55 a.m. on February 5, 2016. Mr. Holmes explained the significance of “entry switch closed” and “entry switch opened” on the computer report. The entry switch is part of the safety mechanism on the crane. When the switch is closed, the functions of the machine are enabled, but if opened, the functions are disabled. The crane’s computer printout showed that respondent entered the cab of the crane at 7:26:39 a.m. and opened the entry switch at 7:27:30 a.m. (Tr. 936- 37; Resp. Ex. P). Mr. Holmes agreed with Mr. Kohler that the lml utilization reading on the crane’s computer was a reflection of the crane’s sensors reacting to the load cells (which are located between the boom and the jib) and the effects of the wind. He explained that the load cells measure the tension applied by the weight that the crane is picking and they calculate the weight of the attachment. When the crane’s computer shows that the lml utilization is higher than 110 percent, it is reflecting that the load values are higher than the crane’s capacity whether or not attributable to wind. He disagreed with Mr. Kohler’s suggestion that the variations in the lml percentage readings meant that respondent was slowly lowering the crane, but conceded that the general rule of thumb for an operator is to get the crane to 90 percent of its load capacity before activating assembly mode (Holmes: Tr. 937-42, 946-47; Kohler: Tr. 800-03; Resp. Exs. P, R). Respondent challenged petitioner’s calculations of the boom and jib angles at the time of collapse with the use of Liebherr’s load capacity chart, which showed that if the main boom was at 83 degrees with a corresponding jib angle at 48.3 degrees, the radius would have been 280 feet (Tr. 840-42; Resp. Ex. Q). Since the crane’s computer readings showed the radius at more than 330 feet, respondent extrapolated that Liebherr’s chart would support a boom angle closer to the 80 degrees that he reported. Mr. Holmes did not contradict Mr. Kohler that the load capacity chart applies to lifting. But he defended respondent’s use of the chart, stating that while it provides the limits in terms of what the crane can pick up, it did not address “whether the boom - 58 - would be in disassembly or a booming down scenario,” suggesting that the use of the chart for lifting was not exclusive (Tr. 960) Given CTS’s conclusions as to the angles of the boom and jib at the time of the crane’s collapse, Mr. Holmes investigated whether a boom with an 80 degree angle could still result in the figures recorded on the crane’s computer. He introduced an unlabeled computer-aided design (“CAD”) of what he stated was a depiction of an LR 1300 with a configuration similar to the collapsed crane – a 194 foot main boom and a 371 foot jib. The CAD drawing,17 which was created by Buckner’s Engineering Department, showed that with a main boom at 80 degrees and a radius of 103 meters, which Mr. Holmes opined was in the center of the readings shown on the crane’s computer printout,18 the angle of the jib would have been at around 37.47 degrees (Tr. 948-51, 969-70). Mr. Holmes explained that the radius kept shifting because of the effect of the wind. He stated that the jib angle on the drawing was consistent with the crane’s jib angle at the time of collapse and was derived mathematically after he provided Buckner’s engineers with the 80 degrees for the main boom and a radius of 103 meters (approx. 337 feet). He based this on respondent’s unflappable insistence that as he was lowering the crane, he had the main boom at 80 degrees, turned it around and got in position before beginning to luff down because he was concerned about the headache ball flapping around. Mr. Holmes acknowledged that the jib angle calculated on the CAD differed from respondent’s report that the jib was around 45 degrees but he appeared to be convinced by the CAD calculations (Tr. 976-79). When asked why he accepted respondent’s assurance that the boom was at 80 degrees but discounted that the jib was at 45 degrees, Mr. Holmes expressed that there was no reason for an experienced operator like respondent to vary the main boom which was in a much stronger position at 80 degrees (Tr. 981). Mr. Holmes concurred with Mr. Kohler that there were different ways to arrive at a radius reading of 103 meters19 and “one of those ways is with the main boom at 80 [degrees] and the jib at 37.41 degrees” (Tr. 978).

17 See Appendix 4 to this report. 18 The last radius reading displayed on the crane’s computer at 8:28:39 a.m. before the collapse was 105.1 meters. At 8:19:51 a.m., the computer displayed a radius reading of 101.7 meters (Resp. Ex. P). 19 As previously noted, Mr. Kohler did not dispute that contractors and crane operators are often directed by the crane manual to either extrapolate or interpolate on the charts that they are given to fit their particular situation (Tr. 853). - 59 -

Based on Buckner’s calculations, Mr. Holmes posited that the crane would have been stable because it was in assembly mode and respondent was booming the jib down in the manner prescribed for taking the machine down (Tr. 950). Comparing those angles to the values outlined in CTS’s chart (Pet. Ex. 14 at 18), Mr. Holmes expressed that the crane would have been able to withstand winds of up to 44 miles per hour (Tr. 952-53). He was emphatic that the crane would have been much stronger with the main boom and the jib left erected,20 citing work that his company had done involving cranes on wind farms (Tr. 962-63, 965, 981, 1007-08). Respondent challenged CTS’s rope length calculations. Mr. Holmes believed that CTS based their calculation of the boom and jib angles on the rope measurements that they took at the Brooklyn Navy Yard. Because he was also present when the measurements were taken, Mr. Holmes gave the measurements to Buckner’s engineers and they arrived at the same angles that were set forth in CTS’s report. However, in light of respondent’s contemporaneous statement following the collapse and his continued insistence that he had the boom angle at 80 degrees, Mr. Holmes was curious as to how the rope length measurements taken would support a main boom angle as suggested by CTS (Tr. 953-54, 994). He made some rough calculations and concluded that the only way to get from an 80 degree angle to a 73 degree angle was to “pay out” or release the rope, which would account for the rope measurements obtained at the Brooklyn Navy Yard (Tr. 955; Resp. Ex. S). Mr. Holmes acknowledged that when the boom is being lowered, weight and gravity cause it to come down faster which in turn would cause a faster payout, as would have occurred during the crane’s collapse (Tr. 1000). He also noted that when there is more rope on the drum, it spools out faster than when there is less rope. Thus, his calculations were not exact because the rope payout was not at a steady pace. But he still maintained that using the jib and boom winch performance figures provided a solid rule of thumb (Tr. 988-89). Respondent offered an alternate theory regarding the rope measurements. Mr. Holmes reviewed Liebherr’s technical data manual for the LR 1300 and specifically considered the boom winch and the jib winch performance statistics (Tr. 956; Resp. Ex. T at 7). The manual showed that the boom could be raised from 15 to 86 degrees in 127 seconds. According to Mr. Holmes’s calculations, this meant that the boom would move at .556 degrees per second (86° - 15°/ 127

20 In this regard, petitioner’s experts also agreed that, left erected, the crane would have been much stronger if the boom was at an angle of 80 degrees. But there was disparity in their testimony regarding the angle at which the luffer should have been raised in order for the crane to withstand exceedingly strong winds (Hegan: Tr. 321-28: Kohler: Tr. 795-96). - 60 - secs.). The 7.2 degrees difference between respondent’s claim of having the boom angle at 80 degrees and CTS’s calculation of 72.8 degrees meant that enough rope had to be paid out to arrive at an approximate difference of seven degrees. Mr. Holmes was unable to offer an explanation for that. However, he testified that the cab had nothing that respondent could hold on to and surmised that when the crane began to turn over, respondent reflexively reached out to the levers to brace himself. He calculated that in such a position, it would take about 13 seconds (80° - 72.8° / .556) for enough of the boom hoist rope to unspool to arrive at the rope measurements obtained at the Brooklyn Navy Yard (Tr. 955, 957-59, 984, 987-88; Resp. Ex. S). Mr. Holmes testified that he repeatedly reviewed the video of the crane collapse and timed it (Pet. Ex. 13). He stated that 28 seconds elapsed from the time that the crane began its collapse to the point at which the cab overturned. Based on his calculations, Mr. Holmes deduced that respondent must have held the levers for about 13 seconds while the crane was turning over (Tr. 959-60, 979-80). Notably, while CTS’s calculations showed that for every degree of boom angle, the steel pendant bars had to expand by about four and a half inches, Buckner’s engineers calculated that the wire ropes or steel rods would have had to elongate by seven inches for the boom angle to vary by one degree (Hegan: Tr. 476; Kohler: Tr. 902-05; Holmes: Tr. 994-96, 999; Pet. Ex. 14 at Ex. I). Finally, Mr. Holmes opined that the wind caused the crane to collapse because there was nothing on the hook so the crane was not overloaded by anything that respondent was lifting (Tr. 992). He accepted as reliable, CTS’s finding that on the morning of the collapse, the wind was gusting to upward of 30 miles per hour. But he was unsure of the effect of buffering at 400 feet in the air (Tr. 993). He explained that buffering is the effect of varying heights of structures on wind and how the wind might increase at any one place due to the height of a building (Tr. 1002). Mr. Miller added that because of the unusually large configuration of this crane, it could become unstable without any load, and the operator would not have to boom down much to get close to the crane’s tipping point (Tr. 1031-32).

Petitioner’s Countervailing Arguments to Respondent’s Evidence Mr. Kohler did not dispute that in assessing wind effects, the height of a building and the angles of a street create variations on how a wind might affect a particular area in NYC (Tr. 777- - 61 -

78). Also, Mr. Kohler concurred that the crane’s computer recognized gravity and calculated the angle reading of the crane when it was falling based on the horizontal. Thus, he considered that the 69.4 degrees angle reading for the boom may or may not have been the boom angle immediately prior to the crane’s collapse (Tr. 824-25, 833-34). Upon continued probing, Mr. Kohler admitted that the computer registers the boom angle at a point of stoppage and that CTS thought that the 69.4 degrees boom angle was the angle that the computer read because of the fall. But he was positive that the boom angle could not have been at 80 degrees prior to the crane’s collapse. Otherwise, the wind would not have blown the crane over (Tr. 832, 834). It was undisputed that lowering/disassembling the boom is done in the same manner as it was raised (Hegan: Tr. 402-05; Kohler: Tr. 731, 763-64, 771; Resp. Ex. G). Mr. Kohler perceived that when respondent placed the crane in assembly mode, he was attempting to move the jib according to the Liebherr manual (Tr. 850). But he disagreed that respondent was lowering the crane in reverse order because “[respondent] had the boom further in, in order to - - to lift the jib and get off the ground. If he would have been at - - at 69 degrees, he could have never put it up or at 72 degrees” (Tr. 851). Mr. Kohler knew that the crane’s cab had no seatbelts and there was nothing that permitted respondent to strap himself in (Tr. 825-26). But he suggested that respondent could have held onto the seat or the glass. While it was a real possibility that respondent may have fallen on the levers or tried to grab them during the fall, Mr. Kohler was reluctant to say that either action could have affected the computer readings on which CTS based its calculations. He eventually admitted that had respondent pulled the levers up or down, it could have affected the readings by about less than five percent (Tr. 827-28, 830-31, 905). Mr. Kohler recognized that one of the dangers of the falling crane was the counterbalances, which weighed about 400,222 pounds and which could have crashed into the cab with perilous results for respondent (Tr. 826-27). But CTS dismissed such a possibility because given the wind speed “and everything else,” it did not affect much (Tr. 829-30). Instead, CTS concluded that when respondent switched the crane to assembly mode, he lowered the main boom not the jib as he should have, causing the crane to collapse. In so far as respondent’s use of the load capacity chart was concerned, Mr. Kohler conceded that often when the manual does not provide the necessary statistical directions, contractors and operators are directed to extrapolate or interpolate based on the chart given, to - 62 - meet their particular situation (Tr. 853). He did not disagree that based on Liebherr’s chart, a boom at an angle of 83 degrees would have a shorter radius than a boom with an angle of 80 degrees (Tr. 843-44). But he pointed out that the Liebherr chart did not display a related jib angle for a radius of 330 feet and a boom angle of 83 degrees (Tr. 844, 848-49).

Analysis of Parties’ Positions, Experts’ Testimony and Findings As noted, I drew an adverse inference that CTS’s weekly updates which petitioner failed to produce contained information that may have been favorable to respondent. Petitioner argued that but for respondent’s actions or inactions, the crane would not have collapsed. It maintained that the collapse was not due to mechanical or structural defects or problems with the crane’s foundation. It was due to a stability problem brought on by the angle at which respondent lowered the crane. Pet. Brief at 27-29. While there is no doubt that, had respondent lowered the crane on the eve of the wind event, the accident would not have occurred, petitioner did not prove its specific allegation that respondent lowered the boom to 72 degrees and the jib, to 49 degrees on the morning of the accident. Though both sides presented credible experts, respondent’s experts were more persuasive. Not only did they have more practical, hands-on experience with the equipment at issue, they were more knowledgeable, as demonstrated by their ability to provide explanations for certain terms on the crane’s computer printout (such as “entry switch opened” or “entry switch closed”) which petitioner’s experts were unable to. Indeed, Mr. Holmes’ work, which involves making calculations, working on load charts, wire roping, tension, compression, pounds of force, reeving and ground bearing pressures, visiting assembly sites, assessing the stability of a crane and interpreting the load charts, made him exceptionally qualified to assess and/or analyze the cause of the collapse. He also supervises 60 crane operators, the majority of whom operate large cranes including 18 LR 1300 cranes (Tr. 920-22, 967). As an engineer and DOB’s chief expert, I expected Mr. Kohler to fully understand the workings of the crane and the associated terminology, as partially reflected in the CPU data. But he did not. For instance, the crane’s CPU data showed that on February 4, 2016, the crane was deactivated at an angle of 87.4 degrees. Respondent testified that he had brought the crane down to 80 degrees which was confirmed by the report when the main boom limit switch was activated the following morning. CTS’s explanation that the difference in degrees resulted from - 63 - respondent shutting the system down approximately one minute after deactivation, would lead to the conclusion that the boom continued to move even after it was deactivated. Acceptance of this reasoning would mean that, had respondent shut the system down two or three minutes after deactivation, the boom would have dropped 14 to 22 degrees, which I found to be unlikely. More importantly, Mr. Kohler did not offer a satisfactory explanation for the 69.4 degree main boom angle displayed on the CPU report when its fall back support was deactivated at the time of the crane’s collapse. Rather, his testimony was inconsistent. First, he stated that it may or may not have been the boom angle immediately prior to the crane’s collapse. Then he stated that CTS did not know if the 69.4 degrees boom angle was before or during the fall. Yet later, he claimed that CTS thought that this was the angle that the computer read because of the collapse as the reading was on the horizontal. Petitioner’s explanations also had margins of error but CTS did not explain how they were calculated. For instance, while CTS initially shrugged off the possibility that if respondent had grabbed on to the levers or had fallen on them during the crane’s collapse, doing so could have affected the computer readings, Mr. Kohler later admitted that it indeed could have affected the readings, but claimed that the impact would only have been about five percent. He offered no explanation as to how he arrived at this percentage estimate. Also, when CTS weighed the component parts of the crane at the Brooklyn Navy Yard, the weight differed from the information provided to CTS by Liebherr by about five percent, which Mr. Kohler claimed to be within the level of tolerance. But he did not explain what the range level of tolerance was and offered no information as to how or by whom the tolerance level was established. I found CTS’s rope calculations to be based on flawed and unproven assumptions. CTS theorized that after switching to assembly mode, respondent must have seen an increase in winds, gotten nervous, and in an anxiety to lower the crane, lowered the boom instead of the jib, to an angle that made the crane unstable and caused its collapse. CTS attempted to prove its theory by estimating the boom and jib angles at the time of collapse using its own untested equation involving measurement of unspooled ropes. According to Mr. Kohler, the rope had been cut in several places so CTS measured what was left and estimated what should have been left on the luffing drum, using the theory of elongation or the stress on the steel rope based on load, which it assessed by weighing the boom of the crane. Not only was this an - 64 - untested methodology which was devised by CTS, but there was no indication that Liebherr was made aware of the formula and had signed off on it as a valid method of calculating the angles. Moreover, Mr. Kohler’s testimony was flawed in that he testified that once stretched the steel pendant bars never reverted to their original size. Yet, he acknowledged that when he went to the Brooklyn Navy Yard, the collapsed crane’s steel pendant bars were at their original size. When asked about miscalculations in elongation values, Mr. Kohler asserted that any miscalculations would only account for a one or two degree difference but he offered no explanation as to how he arrived at that margin of error. He admitted that CTS already knew what it was looking for, suggesting that it had predetermined a likely cause of the crane’s collapse and sought to fit its equation to the outcome that it wanted. I note here that contrary to respondent’s assertion, there was no evidence to implicate DOB in any predetermination on CTS’s part. Resp. Brief at 36. Respondent never wavered from his contemporaneous statements given almost immediately after the collapse vis-a-vis his testimony before this tribunal as to the angle at which he had the boom and jib on the morning of the accident. Yet, CTS did not obtain any calculations from Liebherr as to the likelihood that respondent was telling the truth. This tribunal has often found that contemporaneous reports are more reliable than reports that may become tainted as a result of faulty recollection or deliberate misrepresentation. See Dep’t of Correction v. Boyce, OATH Index No. 789/97 at 14 (July 9, 1997), aff’d, NYC Civ. Serv. Comm’n Item No. CD 99-75-SA (July 19, 1999) (“Contemporaneousness usually evinces reliability.”); see also People v. Brown, 80 N.Y.2d 729, 733 (1993) (“a statement describing an event when or immediately after it occurs is reliable because the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection. Thus, the likelihood of deliberate misrepresentation or faulty recollection is eliminated.”) (citations omitted). In this case, it was difficult to imagine that so soon after an accident that could have resulted in his own demise, respondent would have had the presence of mind to deliberately lie about the angles to which he had brought the boom and jib down. Moreover, I got the distinct sense that this is not something about which respondent would have been mistaken. Respondent’s alternative method of calculating the boom and jib angles through use of Liebherr’s load capacity chart for the crane and the radii on the crane’s CPU printout was based on permissible extrapolation. While the load capacity chart did not display a related jib angle - 65 - based on the radius and boom angle that respondent used, Mr. Kohler’s sole unsupported claim was that the chart was only applicable during load lifting, not in assembly or disassembly of the crane. But, given that the lml reads winds as weight on the crane, Mr. Kohler offered no explanation as to why use of the load capacity chart was not appropriate, even though he conceded that extrapolation is permitted. Mr. Holmes’ CAD drawing which was produced by Buckner’s engineers using: (1) the configuration of the LR 1300 on the day of the collapse; (2) an average of the radius shown on the crane’s CPU data; and (3) the angle at which respondent reportedly had the crane, showed a jib angle different from what respondent reported. Mr. Holmes’ acceptance of respondent’s reported jib angle based on respondent’s representation that he was varying the angle that morning under directions was not persuasive because there was no testimony to support that respondent was varying the jib on the morning of the crane’s collapse, or that even if he were, it was at the behest of someone else. In spite of this less than satisfactory explanation for the difference in the jib angle calculated by Buckner’s engineers and the jib angle as reported by respondent, I find that petitioner’s calculations regarding the boom and jib angles were sufficiently and credibly challenged by respondent’s expert, who provided an equally compelling explanation in contradiction of CTS’s conclusions. In sum, respondent’s experts remain convinced that wind caused the crane to collapse while petitioner’s experts are convinced that respondent lowered the boom to an angle of 72 degrees and the jib to an angle of 49 degrees, making the crane unstable and causing it to collapse. There is no doubt that the crane did not collapse on its own. It is possible that respondent was outmaneuvered by the wind in his attempt to jack-knife the crane and as the crane began to collapse, he held onto the levers for balance, further exacerbating the collapse. But petitioner’s allegation was specific in terms of angles. And its experts failed to prove this particular allegation with specificity. Moreover, respondent’s experts presented a convincing explanation as to the cause of the crane’s collapse. Accordingly, I find that petitioner has not proven this specific allegation by a preponderance of the credible evidence, and recommend that Specifications 4 of Charges 1 and 2 be dismissed.

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FINDINGS AND CONCLUSIONS 1. Petitioner established that on February 4, 2016, respondent, the operator of a crane at 60 Hudson Street, New York, failed to follow the manufacturer’s recommendation of laying the boom of the crane down prior to a wind event. This failure violated section 3301.1.3 of the New York City Building Code which requires equipment to be used in accordance with the specifications of the manufacturer. Specifications 1 of Charges 1, 2 and 3, are therefore sustained.

2. Petitioner established that respondent’s failure to lower the crane on the eve of a wind event violated sections 3319-01(p)(2) (iii) and (x) of the RCNY, which places responsibility for the operation of the crane on the operator and requires the operator to fully familiarize himself with the equipment and its proper care. Specifications 2 of Charges 1, 2 and 3 are therefore sustained with respect to those sections of the rules.

3. Petitioner did not establish that respondent failed to securely fasten the crane against displacement by wind loads or other forces during the course of the job. But it nevertheless established that respondent failed to lower the crane, in violation of section 3319- 01(p)(2)(vi) of the RCNY. Therefore, Specifications 3 of Charges 1, 2 and 3 which allege a violation of said section of the rules are sustained.

4. Petitioner did not establish that on February 5, 2016, respondent lowered the boom to 72 degrees and the jib to 49 degrees, making the crane unstable and causing its ultimate collapse. Accordingly, Specifications 4 of Charges 1 and 2 should be dismissed.

RECOMMENDATION Section 28-401.19 of the Administrative Code empowers the Commissioner to suspend or revoke a license and/or impose a fine not to exceed twenty-five thousand dollars for each finding of a violation, where a licensee “failed to comply with this code or any order, rule, or requirement lawfully made by the Commissioner …” or has demonstrated “negligence, incompetence, lack of knowledge, or disregard of this code and related laws and rules” or where the licensee engaged or assisted in an act that endangers the public safety and welfare. See Admin. Code §§28-401.19(6), (7), (11). Petitioner seeks revocation of respondent’s hoist machine operator’s license for the sustained charges. I find that to be appropriate. - 67 -

Petitioner established that respondent was responsible for the crane and was required to fully familiarize himself with the crane and the proper care necessary for the crane. Respondent neglected this responsibility when he failed to follow the manufacturer’s instructions to lower the crane prior to a wind event, which I found to constitute negligence. While leaving a crane erected overnight does not appear to be an anomaly, leaving the LR 1300 (possibly the largest crane configuration in New York City at the time) erected overnight when strong winds were expected the following day, was. It led to respondent’s belated attempt to lower the crane during the wind event, at which time the crane collapsed, resulting in one fatality and other significant damage to property. In Department of Buildings v. Rapetti, OATH Index No. 374/11 at 26 (July 6, 2011), adopted, Comm’r Dec. (July 18, 2011), the respondent’s hoist machine operator’s and rigger’s licenses were revoked where the respondent’s violation of applicable laws was the primary cause of the crane’s collapse that resulted in seven fatalities. In that case, the respondent used defective slings to support the collar of a building, failed to follow the manufacturer’s specifications by using four instead of eight slings, and by attaching them at the corners instead of in the middle, and by failing to pad the slings. The trial judge noted that “[r]espondent’s licenses placed him in a safety-sensitive profession where cutting corners, ignoring rules, and exercising bad judgment can lead to catastrophe” Rapetti, OATH 374/11 at 26. In Department of Buildings v. Geer, OATH Index No. 1288/13 (Dec. 18, 2013), adopted, Comm’r Dec. (Dec. 20, 2013), the respondent’s hoist machine operator’s license was revoked after he violated DOB’s rules by lifting a load without having verified its weight, failing to lift from the area designated on approved plans, failing to have the approved load chart accessible to him, and lifting a load that exceeded the crane’s capacity by approximately 85 percent, which likely caused the crane’s collapse and caused significant injuries to seven workers. Geer, OATH No. 1288/13 at 1, 25. The trial judge found the combination of short cuts taken by the respondent helped to create an environment that was rife with inattention to rules, lack of sound information, and poor judgment. Geer, OATH No. 1288/13 at 22. Here, respondent’s failure to lower the crane on the eve of a wind event may seem relatively minor compared to the conduct of the respondents in Rapetti and Geer. Yet, it is significant because it demonstrated a disregard for applicable laws and the crane manufacturer’s - 68 - instructions which are designed for the safety of the workers in the crane industry as well as the public, but it also constituted negligence. As in Rapetti, there were factors raised by respondent which, under different circumstances, would have warranted some mitigation of penalty. He has been a crane operator for many years and has a reputation for safety and operating by the book. Even after the tragic consequences here, respondent worked on approximately 200 hoisting jobs until his license was suspended in December 2016, following the release of CTS’s report. While respondent’s failure to lay the crane down on the eve of severe winds was the culmination of a series of errors made by the contractor and engineer on the job and the plan examiner who approved the job, those preceding errors did not cause the crane’s collapse. Nor did either side convince me as to the root cause of the crane’s collapse. What is clear, however, is that, had respondent followed the manufacturer’s instructions and laid the crane down on the eve of a wind/weather event, the resulting fatality and other associated significant injuries would not have occurred. For this reason, I recommend revocation of respondent’s license.

Ingrid M. Addison Administrative Law Judge April 10, 2018

SUBMITTED TO:

RICK D. CHANDLER, P.E. Commissioner

APPEARANCES:

PATRICIA PEÑA, ESQ. SEHZAD M. SOOKLALL, ESQ. Attorneys for the Petitioner

STACEY G. RICHMAN, ESQ. Attorney for Respondent

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APPENDIX 1

Pet. Ex. 14 at DOB000011

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APPENDIX 2 (Calculations of Stability of Crane at Various Boom and Jib Angles and Different Wind Speeds)

(Pet. Ex. 14 at 18)

(Pet. Ex. 14 at 33)

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APPENDIX 3 (Load Capacity Chart)

(Pet. Ex. 14 at Ex. F)

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APPENDIX4

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DrawingofLR 1300 withSimilar Configurations to Collapsed Crane

(Resp.Ex.

R)