December 22, 2013
Commissioner Peter M. Rivera New York State Department Labor State Office Campus Building 12, Room 506
Albany, NY 12240
Dear Commissioner Rivera:
Pursuant to General Municipal Law § 50-g and Village Law § 4-402(g), a notice of defect was filed with the Village Clerk of Scarsdale on September 13, 2013, informing the Village of the dangerous, defective and unsafe condition that has notoriously existed for years in the rapidly deteriorating roadway located at and abutting the Scarsdale Public Library at 54 Olmsted Road, the only village road that extends to the entrance of the library.
By a letter of October 25, 2013, from the Village Manager’s Office, I was led to believe that the unsafe condition of the roadway described in the September 13th notice of defect had been corrected.
On December 3rd, 2013, I visited the roadway and saw that nothing was done to change its grossly unsafe condition of which I took about 33 photographs. The road was as unsafe as it was on September 13th, the date of the notice of defect received by the Village. The Board of Trustees, who by law possess and control the Village’s roads, would not tolerate in front of the Village Hall a roadway as unsafe as that in front of the library, yet that is the condition in which the librarians and their assistants are made to work, for the only means of access into the library, by day or more dangerously at night, is by walking across the road in front of it.
The Board’s and Village Manager’s subsequent answers to my protest against the outrageously unsafe work condition of the librarians and their assistants is that these workers must await the Spring when a new budget may be voted on and the road newly paved, a heartless answer from those who for years have knowingly failed to deal with the notoriously deteriorating condition of the roadway.
The Board’s and Village Manager’s answers that the library workers must run the risk of substantial injury or death until a budget may be voted on is as illegal as one can imagine, for the duty of the Village to make the road safe is an immediate one. The duty is not a discretionary one. Morally considered it is repugnant coming as it does from one of the wealthiest communities in the United States to hardworking women probably hesitant to speak out and thus in some way endanger their employment.
Labor Law § 200
The failure of the Village to correct the condition of its roadway justifies this complaint to the Attorney General and the Commissioner of the New York State Department of Labor that the Village has violated, and continues to violate, Labor Law § 200 by failing to provide the employees of the library with a safe place in which to work by compelling them to walk over the defective, unsafe roadway as their sole means of access to their work in the library . See, Zito v. Occidental Chem. Corp., 259 AD 2d 1015 (4th Dept. 1999), leave to appeal dismissed, 93 NY 2d 999; cf., Moore v. Suburban Fuel Oil Service, Inc., 22 AD2d 827 (2d Dept. 1964), order aff’d, 16 NY2d 647 (1965).
Labor Law § 200(2) provides, in effect, that if any area to which the Labor Law applies is in a dangerous condition, the labor commissioner may post a notice in such area which shall “prohibit further work in or occupancy of such area until the dangerous condition is corrected*** ”. Further, Labor Law § 200(3) provides that the Attorney General may institute a proceeding to enjoin further work or occupancy of that area. Accordingly, if the Village fails to provide the required safe work place for the librarians, the closing of the library is well within the reach of the Labor Law.
Penal Law §§ 15.o5(4), 125.10, 195(2)
The refusal to make the roadway safe arguably makes the Board and Village Manager chargeable at this time with the violation of Penal Law § 195 (2) which provides that a public servant is guilty of official misconduct, punishable by a term of one year, when, “with intent to obtain a benefit or deprive another person of a benefit, he knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.”
The Board and the Village Manager have the factual knowledge and the lawful duty which, together with evidence of injury or loss of life traceable to the dangerous condition of the roadway, would put them at risk to prosecution for assault with criminal negligence (Penal Law § 15.05(4)) and assault with recklessness, to say nothing of the felonies of criminally negligent homicide (Penal Law § 125.10) and second degree reckless manslaughter.
In defense against the criminal charges, it is insufficient , except in an asylum, to assert, as the Village Manager has done, that the correction of the road’s unsafe condition should await the adoption in the Spring of the next budget, presumably when the softer earth can more readily accept the burial of children or their parents or the librarians who fell on the library road in the Winter.
Attorney at Law