The Ramirez files: Garbage-truck driver should have seen and failed to yield to cyclist he hit and killed last July, DA’s documents show

A closer look: Two unlicensed truck drivers who hit and killed cyclists face different fates under law
FIle photo by Mark Mellone

A garbage-truck driver behind the wheel without the proper license.

An initial investigation that determined the driver failed to yield to a cyclist, running him over and killing him before fleeing the scene.

A crash-reconstruction expert who believed the driver, had he been paying attention, would have seen the cyclist from at least 10 feet away.

Investigators taking the driver’s and passenger’s word that they didn’t feel the impact of the collision, and issuing a small fine as punishment.

Newly obtained documents related to the death of 27-year-old cyclist Neftaly Ramirez — who Action Carting driver Jose Nunez fatally crashed into in Greenpoint around 12:25 am on July 22, 2017 — suggest many questions remain from that night, according to the Ramirez family’s lawyer, who is taking the driver and the notoriously negligent private carting company to civil court next month after District Attorney Eric Gonzalez decided not to prosecute Nunez earlier this year.

“When you put the pieces of the puzzle together, you get a picture of what really went on,” said Michael Kremins. “If it weren’t for negligence of the driver, Neftaly would still be alive today.”

The night of the deadly collision, officers at the scene blamed the then-unknown driver for failing to yield to Ramirez when he made a right turn from Franklin Street onto Noble Street and ran his big-rig over him, according to the 272-page dossier The Brooklyn Paper obtained from Gonzalez’s office via a Freedom of Information Law Request.

“Preliminary fault: operator. Cause: Failure to yield right of way,” cops wrote in their crash-investigation report.

But weeks later, authorities broke from their initial findings, claiming in August that Nunez — who had been arrested three times in the past and was only interviewed once by phone — actually had no idea he plowed into Ramirez while making the turn, making it impossible to convict him of a crime because he had no idea he committed it.

“If someone hits someone and it’s a big gigantic garbage truck and they don’t know they hit him, you can’t charge someone with a crime,” Lieutenant John Grimpel said at the time.

It is not clear if drivers of large trucks can feel the force of a collision with a cyclist or even notice when a body is run over by the vehicle’s tires, as this newspaper could not find an example of a study done on such occurrences by press time, but bicycling advocates claim truckers have been playing the “I didn’t feel it” card for years.

“Unfortunately what I have found is that the drivers of large heavy trucks use that as an excuse to be held to a lower standard of conduct,” said Steve Vaccaro, a lawyer at the Manhattan-based firm Vaccaro and White, which represents accident victims including cyclists. “No studies can point to what someone should or should not have heard, and there may be factors, such as whether the bike was also run over or dragged.”

Still, police took the driver’s and his helper’s word as gospel and, on Aug. 3, just 12 days after the crash, an investigator’s notes on the incident hinted that officials would let Nunez walk.

“I informed [the Ramirez family] that the Kings County District Attorney’s office is looking to not file any criminal charges against the driver involved in this collision,” Det. Clive Thomas wrote in his notes.

But the Ramirez family pushed Gonzalez to take another look at the hit-and-run case during an Aug. 17 meeting, so prosecutors continued their probe until January, when the district attorney said there was not enough evidence to convict Nunez — even after investigators learned he was behind the wheel without the proper license when he failed to yield to Ramirez, the latter itself a misdemeanor.

Months after Gonzalez declined to prosecute Nunez, however, his office charged another driver with reckless manslaughter after she hit and killed two children crossing a Park Slope street, arguing that the motorist knew she shouldn’t be behind the wheel because her doctors told her so.

Hard to miss

A crash-reconstruction expert who recreated the collision as part of Gonzalez’s investigation said Nunez and his helper — a colleague whom video footage shows was on the right side of the truck’s rear minutes before the crash at 12:21 am, and in its front-passenger seat moments after at 12:26 am — should have been able to clearly see Ramirez as he pedaled alongside the 80,000-pound vehicle, because it had mirrors on its right side, the part that smashed into the young man.

“The design of the subject sanitation truck as well as the mirrors would have provided an excellent view of any objects or persons in close proximity to the right side of the truck,” Stephen Coulon wrote in his reconstruction report. “Had the driver of the vehicle or his helper paid attention to the way the truck was turning through a tight intersection, they could have easily seen the bicyclist … who would have been visible to the driver from distances as faraway as 10 feet from the right side of the truck.”

Following the fatal crash, Nunez only received a summons that typically results in a $150–$500 fine, and retired not long after hitting and killing Ramirez. And Nunez’s helper Damon Wright — who has 13 prior arrests — backed him up, telling investigators that he didn’t see Ramirez either.

Gonzalez’s spokesman declined to comment on the mens’ arrest records, saying they are sealed and not available to the public, and reiterated that neither could be held criminally accountable for Ramirez’s death.

“Following an exhaustive reinvestigation that included interviews with all of the witnesses, a review of surveillance footage, and a consultation with an accident-reconstruction expert, we determined that we could not sustain criminal charges,” said Oren Yaniv.

Blaming victim

Action Carting brass jumped on Gonzalez’s decision not to prosecute its driver, claiming through a spokeswoman that Ramirez caused his own death because he knocked back a few drinks before hopping on his bike that evening.

“After months of thorough examination the report indicated cyclist error … alcohol in the cyclist’s bloodstream, no required protective gear was worn, etc.,” company rep Jean Kim wrote in an unsolicited e-mail with the subject “cyclist error” sent to this newspaper on April 23.

But the first officers at the scene of the collision said they didn’t smell booze on Ramirez, according to the preliminary crash-investigation report.

“Officers did further state that there was no odor of alcohol on the victim,” cops from the 94th Precinct told the investigator.

Police did not respond to multiple requests for comment on whether any other documents officers prepared indicated Ramirez was drinking that night, and the district attorney’s spokesman would not comment on the medical examiner’s autopsy, which was not included in the dossier. A rep for the medical examiner also declined to comment on the autopsy aside from stating that Ramirez died from “blunt impact injuries of head and torso” that were ruled an “accident.”

Another law-enforcement official, however, said neither alcohol nor drug use were pertinent to the investigation.

“The question of the cyclist’s intoxication was irrelevant to the hit-and-run investigation,” the official said.

Kremins said blaming the victim is a disturbing narrative to push, but that he isn’t shocked to hear it from a company whose drivers have killed five people over the last decade and received thousands of violations for breaking city laws since 2012.

“It doesn’t surprise me they would try to throw mud like that,” he said. “We have no evidence he did anything wrong that night, but that’s the way the game works — no one wants to accept responsibility, no one likes to say ‘I’m sorry.’ ”

The city’s Business Integrity Commission slapped Action Carting bosses with a $5,000 fine on April 12 for allowing Nunez to drive a truck without the proper license — but the penalty is a drop in the bucket for the firm, which raked in $104,286,930 from city contracts alone in the past decade.

In April, Mayor DeBlasio’s spokesman said that Hizzoner didn’t take issue with the city’s multi-million dollar business with Action Carting and that he has no intention to sever relations with the company, weeks after the mayor said he “was concerned about the issue, but not familiar with the specifics.”

On May 3, DeBlasio again said that he wasn’t “familiar with” all the details concerning Action Carting’s record of law-breaking and fatal crashes, but that “everyone should be held accountable under Vision Zero,” his initiative to end traffic-related deaths.

And now is the time for the mayor to hold such firms accountable, according to advocates fighting to reform the private-sanitation industry, who demanded DeBlasio amp up enforcement in the wake of an explosive investigation into a Bronx-based firm whose drivers recently killed two people, one of them a teen.

“The problems of this industry are systemic,” read the June 8 letter penned by members of StreetsPAC, Transportation Alternatives, and Families for Safe Streets. “If we really hope to achieve Vision Zero, then half-measures will not cut it.”

Reach reporter Julianne Cuba at (718) 260–4577 or by e-mail at jcuba@cnglocal.com. Follow her on Twitter @julcuba.