Thursday, July 30, 2009

Manhattan District Attorney announces the indictment of a concrete lab director and a building materials testing laboratory

Manhattan District Attorney Robert M. Morgenthau announced today the indictment of a concrete lab director and a building materials testing laboratory for defrauding numerous state agencies and scores of private clients in connection with construction material testing.

The defendants, WILLIAM BAYER, 69, and STALLONE TESTING LABS INC., which employs BAYER as Lab Director, were indicted on charges of scheme to defraud and offering a false instrument for filing. The crimes charged in the indictment occurred from January 1, 1998 through November 18, 2008 and January 30, 2009, respectively.

The investigation into STALLONE began as result of the District Attorney’s investigation and October 2008 indictment of Testwell Laboratories, another independent testing laboratory that performed concrete tests for The Port Authority of New York and New Jersey, Metropolitan Transportation Authority, School Construction Authority, and numerous private projects filed with the New York City Department of Buildings (DOB). Testwell and its executives, who were charged under New York State’s Organized Crime Control Act, are scheduled to be tried in November 2009.

As a result of the investigation into Testwell Laboratories, the DOB began spot checking concrete labs and concrete pours to determine whether or not the falsifications at Testwell were industry-wide. The DOB focused on STALLONE after Port Authority engineers made a referral based on questions about the veracity of certain concrete mix designs test reports relating to projects at LaGuardia Airport, the World Trade Center PATH station restoration, and Lincoln Tunnel projects.

On November 18, 2008, a court-authorized search warrant was executed at STALLONE’s office in Port Chester, New York. An analysis of concrete mix design test reports seized during the search revealed that STALLONE was falsely representing that they were performing mix design tests pursuant to the New York City Building Code when in fact they were not.

Under the New York City Building Code, before any project can start pouring concrete, the structural engineer on the project must specify the strength of concrete needed. The independent testing lab must prepare a mix design report based upon which particular concrete supplier is involved. The reason behind these mix design test reports is that the strength results for concrete can vary vastly depending on the type of sand or cement that different suppliers use. Proper preparation of mix design test reports involve the lab obtaining the materials from the concrete suppliers to create four mix design proportions, or recipes for a given strength of concrete. The lab then mixes each batch and pours the batches into cylinders. At 7, 14, 28, and 56 days, the cylinders are removed from storage and placed into a compressive strength machine which applies immense pressure (or a load) to the cylinder until it cracks. The load at which it cracks is then divided by the dimensions of the cylinder to come up with the pounds per square inch or PSI which is the indicator of concrete strength. The lab must compress the various cylinders for each of the four mixes, and indicate the ratios of water, cement and sand for each mix and then make a recommendation. The recommendation as to which mix to select is based on both reliability of results and the least amount of cement and chemicals used in the mix (the most costly ingredients in concrete). The report is then signed and stamped by a licensed professional engineer (PE) at the lab and sent to the structural engineer of record.

The analysis of documents seized from STALLONE revealed that many of the mix design tests were never performed. Moreover, STALLONE’s reports of these tests were false because the results were scientifically impossible. For example, a STALLONE concrete mix design report for 7 World Trade Center dated December 31, 2002 contained compressive strength results that are identical to the test results contained in another STALLONE mix design test report dated August 10, 2004 for the same project. In this instance the proportions and ingredients for the two mixes were different, making identical test results impossible. Significantly, evidence that contractors were buying false test results comes from documents recovered at STALLONE’s offices. These faxes and emails showed concrete contractors ordering and receiving overnight mix design test reports with test results that purportedly took 28 days.

The investigation also revealed however that from January 1, 1998 through November 18, 2008, STALLONE prepared mix design test reports which purported to show that the tests had been performed pursuant to the Building Code when they had not and used two different PE’s stamps to falsely certify that the tests were completed. From January 1, 1998 to December 31, 2007, STALLONE used the previous lab director Jay Adam’s PE stamp to falsely certify reports. Jay Adam died of a heart attack on January 24, 2009. BAYER, who is listed as STALLONE’s lab director from January 1, 2008 through the present, is charged in connection with allowing STALLONE’s then vice president (and husband to the owner Adrianna Rostek), Miles Rostek, to affix BAYER’s PE stamp to hundreds of mix design test reports which falsely certified that BAYER had supervised these tests when he had in fact not. Evidence revealed that BAYER worked only two days per week and was paid $600 per week. Rostek used Bayer’s and Adam’s PE stamp to certify tests had been performed when in fact no tests had been performed. On January 31, 2009, Miles Rostek also died of a heart attack.

BAYER and STALLONE are each charged with one count of Scheme to Defraud in the First Degree, and Offering a False Instrument for Filing in the First Degree, class E felonies, which are punishable by up to 1 1/3 to 4 years in prison. The defendants will be arraigned today in State Supreme Court, Part 1.

This indictment is the result of continuing investigations by the District Attorney’s Labor Racketeering Unit-Construction Industry Strike Force into criminal activities in the New York City Construction Industry and is the second phase of the District Attorney’s current efforts to combat corrupt practices in the construction material testing industry. Those previously charged in connection with this ongoing investigation include: Reddy Kancharla, Vincent Barone, Alfredo Caruso, Edward Porter Michael Sterlacci, Wilfred Sanchez, Testwell Laboratories, Inc., Nancy Philips, Peter Promushkin, Priti Shah, Clyde Finklea, and L. Tommy Dowd. Testwell and its executives are scheduled to go to trial on November 16, 2009.

The list of projects found to have false mix design test reports include:

Port Authority Bus Terminal
WTC Memorial
WTC Transit Hub
FAA Control Tower, LaGuardia Airport
LaGuardia Airport Rehabilitation of the Alleyway gates
JFK Jet Blue Support Operations Center
Lincoln Tunnel NY River Ventilation Building
Eleven Times Square
Goldman Sachs Building
Second Avenue Subway
Grand Avenue Bus Terminal
1 World Trade Center
1 World Trade Center Substation - SS-108A Upgrade
240 - 244 West Broadway
2575, 2579, 2583 West 16th Street
7 World Trade Center
88th Police Precinct
Augustana Lutheran Home for the Aged Nursing Home Addition & Open Air Parking Structure
Augustana Lutheran Home - Parking Garage Structure
Brooklyn Battery Tunnel Rehabilitation of Roadway - Contract BB-24
Brooklyn Water Front; Brooklyn, NY
Bureau of Supplies Building
Canton Place & East 8th Street
Caton On The Park
Con Edison Academy Street Sub-Station
Contract # HWMWTCA1C 160 3rd Street
Contract # TB-64B Deck Replacement on the Randall's & Ward's Island Viaducts at the Triborough Bridge
Contract HWMWTC16C - Liberty St.
Contract No. 30672 Metro North Hudson Line, Hastings & Irvington
Contract No. 31857 MNRR Hudson Line; Ossining, Scarborough & Phillipse Manor
Contract No. AW28/82 Alternative Fuel E-85 Dispensing Stations
Corona Maintenance & Car Washer NYCTA C-34714
Corona Transit Authority Yard
Downtown P.A.T.H. Station Restoration
East Side Access CQ 026
East Side Access Northern Boulevard
FH HS; 8301 Shore Road
Freedom Tower Utility Relocation Contract #WTC-1001.001
Holocaust Resource Center Queensboro College
I. S. 84
JHS 216Q
John Dewey High School
LIRR MOW Facility
Long Island Rail Road Intermodal Center
Metro North - Hellgate
Metro North & Grand Central Station GCT Upper Loop
Metro North 200 Park Avenue
Metro North Contract # 9551
Metropolitan Avenue Bridge - Guard House Contract # BKBR309
MTA - BBT AW 28/82 - Brooklyn Battery Tunnel
MTA - LIRR - Atlantic Ave Terminal Track # 1
MTA - Utica Avenue
MTA Contract # NYCT E-40803
MTA Contract A-36033 / A-36051 Structural Repairs At the Chambers Street Station, Nassau Loop (BMT)
MTA Contract C-52064 Fenders & Bollards North 7th St. & Whitehall St Ventilation Plants
MTA Contract P-36248 Rehabilitation of Dyckman Substation - IND 8th Ave Line
MTA Project Coney Island
MTA Shea Stadium Station
NYC - Various DDC Projects
NYC Transit Authority Contract # AA35920
NYCT C-34742 Construction of 38th Street Yard - Heavy Equipment Shop
NYCTA - Contract No: A-33497
NYCTA #C-34573 Stillwell Avenue
NYCTA Coney Island Yard
NYCTA Contract A-35779-1 ADA Access - Utica Avenue Station
NYCTA Contract A-35853/54/57/58/75
NYCTA Contract A-36015 Expansion & Rehabilitation of Control House Building
Ocean Parkway Viaduct
P. S. 237 B
P.S. 379
Route 9A; NYC
School for Career Development
TBTA Salt Domes Project Contract No. GFM-435
The City of New York Department of Design and Construction Bay 52nd & Bay 53rd St.; between Cropsey Ave. & 22nd St.; Brooklyn, N.Y.
The Trump World Tower
Tilden High School
Times Square Site # 1
Triborough Bridge Repairs
Ulmer Park Bus Depot NYCTA Contract # G-33057B
Vesey Street Walkway Improvements PA-NY/NJ Contract # WTC-404.161
World Trade Center
World Trade Center Restoration Electrical Duct Banks
WTC - Path Restoration
549 West 23rd Street
211 East 121st Street
326 West 40th Street
330 West 40th Street
705-717 East 6th Street
517 West 46th Street

Mr. Morgenthau thanked the following individuals and agencies for their assistance in the continuing investigation:

Barry L. Kluger, the Inspector General for the Metropolitan Transportation Authority of the State of New York, Frank Lanzo, an Investigative Attorney, and Administrative Assistant Meryl Hughes with that office. Robert E. Van Etten, Inspector General for the Port Authority of New York and New Jersey and members of his staff, including Deputy Inspectors General Michael Nestor and Steven Pasichow and Investigators Mark Gaw, Karen Connelly, and Tomas Santos.

Commissioner Rose Gill Hearn of the New York City Department of Investigation and members of her staff, including Associate Commissioner John Kantor, the Inspector General for the Department of Buildings, Michael Carroll, Chief Investigator James McElligott and Investigators Nick Novellino, Tiffany Dumas, and Christine Abbenda, Investigative Attorney.

Barbara DiTata, Vice President and Inspector General for the New York City School Construction Authority, and Gerard McEnroe and Chris Baldassari.

Dennis Saville, Director, Internal Affairs, Dormitory Authority of the State of New York, Dennis Monahan, Security Manager, Richard Caccece, Senior Investigative Auditor; and Robert Leask and Richard Visconti of the DASNY Authority’s Construction Division.

Senior Investigative Counsel Diana Florence, of the District Attorney's Labor Racketeering Unit-Construction Industry Strike Force, conducted the investigation leading to today's actions, under the supervision of Unit Chief Michael Scotto. The District Attorney’s Investigation Bureau also assisted, including Chief Investigator Joseph Pennisi, Deputy Chief Terry Mulderrig and Senior Investigators Terry Quinn, Angel Garcia, and Robert Tarwacki. Computer Forensic Analysts John Forames Jr. and Selena Ley of the District Attorney’s Computer Forensics Unit also assisted under the supervision of Steven Moran, Director of the IT Forensics Department.

Defendants’ Information:

WILLIAM BAYER, 7/25/1940
75 Georgia Avenue
Bronxville, New York

440 North Main Street
Port Chester, New York

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