September 13, 2018

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law
Vassenelli v City of Syracuse, 2018 NY Slip Op 02957, Appellate Division, Fourth Department

This decision arose in the course of an appeal from an order of the Supreme Court that vacated a temporary restraining order [TRO] and denied the application of Nicholas L. Vassenelli to waive the requirement of an undertaking in consideration of the granting of a preliminary injunction.

Vassenelli, a City of Syracuse [City] disabled and retired police officer, sustained a spinal cord injury in 2003 and was awarded benefits pursuant to General Municipal Law §207-c.* From March 2013 to March 2016, City paid Dignity Plus, Inc. [Dignity], a home healthcare agency, assigned home health aides to provide assistance to Vassenelli in his home. While nurses also assisted home health aides as necessary, neither registered nurses nor licensed practical nurses were assigned to care Vassenelli in his home 24 hours per day.

In February 2016, Dignity notified the City that Vassenelli was in need of a heightened level of care that would approximately double the cost of Vassenelli 's services from Dignity and Dignity notified the City that it intended to terminate providing Vassenelli  with services on March 20, 2016unless the City agreed to the increased level of care and cost. The City and Dignity were unable to reach a new agreement, and Vassenelli brought this action alleging that the City wrongfully denied the payment of and obstructed him from receiving certain medical care.

Supreme Court scheduled a hearing on Vassenelli's application for a preliminary injunction and granted a TRO, requiring the City "to continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home."

At the conclusion of the hearing on a preliminary injunction, Vassenelli made an oral motion alleging that the City had failed to provide him with the nursing services required by the TRO and requesting "that the [the City therefore] be found in contempt." After the hearing, the Supreme Court granted the preliminary injunction on the condition that Vassenelli post an undertaking pursuant to CPLR 6312 and stated that the City was entitled to a hearing on the oral motion alleging contempt.

Vassenelli then filed another order to show cause seeking a waiver of the undertaking and, in accordance with the prior oral motion alleging contempt, a finding that the City  had willfully disobeyed the TRO.

The City cross-moved seeking leave to reargue Vassenelli 's prior application for a preliminary injunction, denial of that application upon reargument and vacatur of the TRO to the extent necessary. Supreme Court issued an order denying the relief sought in Vassenelli 's second order to show cause and granting that part of the City's cross-motion seeking vacatur of the TRO.

The Appellate Division affirmed the Supreme Court's action, explaining that "[i]nasmuch as [Vassenelli] expressly requested injunctive relief under CPLR Article 63 based on the alleged failure of the City to act in accordance with the General Municipal Law,** [it] conclude that the [Supreme] court properly applied CPLR §6312(b)." The Appellate Division said the lower court "did not improvidently exercise its discretion in fixing the amount of the undertaking."

Addressing Vassenelli motion to hold the City in contempt, the Appellate Division, noting that the TRO required the City to "continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home," opined that "[i]nasmuch as the City had never previously paid for or provided [Vassenelli] with 24-hour skilled nursing care in his home, that language was unclear and equivocal, and it therefore could not serve as the basis for a finding of contempt."

* Subdivision 2 of §207-c of the General Municipal Law provides that "Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member. If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed."

** Subdivision 1 of §207-c of the General Municipal Law, with respect to the payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties, in pertinent part, provides as follows: "1. Any ... member of a police force ... who is injured in the performance of his [or her] duties or who is taken sick as a result of the performance of his [or her] duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness. Provided, however, ... the municipality shall not be liable for salary or wages payable to such policeman, or for the cost of medical treatment or hospital care furnished after such date as [certain] health authorities or physician shall certify that such injured or sick policeman has recovered and is physically able to perform his regular duties. Any injured or sick policeman who shall refuse to accept medical treatment or hospital care or shall refuse to permit medical inspections as herein authorized, including examinations pursuant to subdivision two of this section, shall be deemed to have waived his [or her] rights under this section in respect to expenses for medical treatment or hospital care rendered and for salary or wages payable after such refusal.... Notwithstanding any provision of law to the contrary, a provider of medical treatment or hospital care furnished pursuant to the provisions of this section shall not collect or attempt to collect reimbursement for such treatment or care from any such policeman ...."

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