SCOTIA — An elderly village woman might still be alive today had a health care company acted appropriately after an employee violated its rules by taking her recently paroled and drug-addicted husband to the woman's home, according to a lawsuit filed by two of the victim's sons.
The suit says "negligence and carelessness" by Rely Health Care Services of Schenectady and Melissa McCray exposed Elisabeth Gelber, 83, and her husband to an "unreasonable risk of harm" that ultimately caused the woman's death from injuries she suffered in an attack by Juan McCray in November 2009.
At the time, McCray was married to Melissa McCray, who was a home health care worker for Rely Health Care Services.
She had been hired to care for Dr. Julius Gelber, 94, a retired urological surgeon.
The lawsuit contends that shortly before the attack, Melissa McCray took her husband to the Gelbers' home and asked Elisabeth Gelber if he could stay there during her shift. Julius Gelber objected, and Juan McCray left. The Gelbers complained to the health care company about the incident because it violated the company's rules, the lawsuit said.
McCray, 45, later rode his bike from his Schenectady home to the Gelbers' Sunnyside Road residence where he slipped through a back door that the couple left open for health care aides. Authorities have said he targeted the Gelbers to get money for crack cocaine.
When Elisabeth Gelber confronted him, McCray tied her up and threatened her with a steak knife, beat her and stole her purse, a laptop computer, a television and credit cards. He drove off in the couple's Subaru Forester, which was found the next day abandoned in Schenectady.
Gelber required brain surgery and never fully recovered. Her husband was not hurt. He died in February 2011 and she died five months later.
Authorities said Melissa McCray was not involved in the crime and was not charged, but she was fired from her job.
In August 2010, Juan McCray pleaded guilty to first-degree assault and burglary. He was sentenced to 22 years to life in prison.
"The attack on Mrs. Gelber and the invasion and burglary of the Gelber home occurred as a proximate result of the negligence and carelessness of the defendants," says the lawsuit filed Thursday in state Supreme Court in Erie County.
Rely's parent company, Homemakers Upstate Group Inc., is based in Tonawanda in Erie County.
Rely, Homemakers Upstate Group and Melissa McCray are listed as defendants.
In a request for comment on Friday, a woman at Rely's Schenectady office referred a reporter to company headquarters. A message left there was not returned.
The plaintiffs, Franklin and Brian Gelber, co-executors of their parents' estate, are seeking unspecified monetary damages.
"There were countless errors in judgment" by McCray and Rely, and the crime was preventable, said Marc Albert, a New York City attorney for the Gelbers.
"When the Gelbers called Rely to complain about Mr. McCray being brought to their home by one of their aides on the day it occurred, Rely's response was simply to ignore them," Albert said Thursday. "Unfortunately, their failure to take reasonable action or any action for that matter had tragic consequences for a couple that was beloved in the community in which they lived."
When McCray targeted the couple, he had been on parole for three months for grand larceny. He served prison time for attempted robbery and burglary in Albany dating back to 1985, according to the state Department of Correctional Services and Community Supervision.
In one criminal conviction, McCray shoved a 60-year-old victim out of her wheelchair during a robbery in Albany.
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