Nature of the Case
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Facts
P and Frank Sorichetti were married in 1949, and had three children, the youngest being Dina, who was born in 1969. Frank drank excessively and the couple's relationship was quite stormy, with Frank becoming violent and abusive when under the influence of alcohol. In January 1975, P obtained an order of protection in Family Court following a particularly violent incident. Frank was 'forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward' P. P moved out of their residence and took her own apartment. When she returned to obtain her personal belongings, Frank attacked her with a butcher knife, cutting her hand, which required suturing, and threatened to kill her and the children. Frank had fled by the time the police arrived. A second order of protection was issued by Family Court and a complaint filed in Criminal Court by P. Frank was arrested by detectives from the 43rd precinct, but P subsequently dropped both the Family Court and criminal charges based on Frank's promise to reform. In September 1975, Josephine served divorce papers on him. Frank became enraged and destroyed the contents of their apartment. He broke every piece of furniture, cut up clothes belonging to P and Dina, threw the food out of the refrigerator, and bent every knife and fork. The police from the 43rd precinct were summoned, but they refused to arrest Frank because 'he lived there.' Family Court entered a third order of protection that also ordered Frank Sorichetti to stay away from P's home. Frank continued to harass his wife and daughter, following them in the mornings as they walked to Dina's school and threatening that they 'were Sorichettis' and were going to 'die Sorichettis', and that he was going to 'bury them.' P reported these incidents to the 43rd precinct. Frank created disturbances at P's place of employment on a number of occasions with the result that she was discharged. On October 9, 1975, Frank was arrested by officers of the 43rd precinct for driving while intoxicated. On November 6, 1975, P and Frank appeared in Family Court where the order of protection was made final for one year. Frank had visitation privileges with Dina each weekend from 10:00 a.m. Saturday until 6:00 p.m. Sunday. Dina would be picked up and dropped off at the 43rd precinct. As required by Family Court Act § 168, the order also recited that: 'The presentation of this Certificate to any Peace Officer shall constitute authority for said Peace Officer to take into custody the person charged with violating the terms of such Order of Protection and bring said person before this Court and otherwise, so far as lies within his power, to aid the Petitioner in securing the protection such Order was intended to afford.' P delivered Dina to Frank in front of the 43rd precinct at the appointed time. As he walked away with the child, Frank turned and shouted, 'You, I'm going to kill you.' Pointing to his daughter, he said, 'You see Dina; you better do the sign of the cross before this weekend is up.' He then made the sign of the cross on himself. P understood the statements and actions to be a death threat, and she immediately entered the police station and reported the incident to the officer at the desk. She showed him the order of protection and reported that her husband had just threatened her and her child. She requested that the officer 'pick up Dina and arrest Frank.' The officer told P that because Frank had not 'hurt her bodily -- did not touch her' there was nothing the police could do. P returned home. At 5:30 p.m. the following day, P demanded that the police pick up Dina and arrest her husband who was then living with his sister some five minutes from the precinct. She showed the officer the order of protection and related the threats made the previous morning and Frank's history of drinking and abusive behavior. The officer testified that he told P that if 'he didn't drop her off in a reasonable time, we would send a radio car out.' A Lieutenant Leon Granello dismissed the protective order as 'only a piece of paper' that 'means nothing' and told P to wait outside until 6:00. An officer who had prior dealings with Frank asked immediately for a patrol car but the Lieutenant rejected the suggestion. P continued to plead for help. At 7:00 the Lieutenant told P to leave her phone number and to go home, and that he would call her if Sorichetti showed up. She did as suggested. At about the same time, Frank's sister entered her apartment and found him passed out on the floor with an empty whiskey bottle and pill bottle nearby. The woman also found Dina, who was severely injured. Between 6:55 and 7:00 p.m., Sorichetti had attacked the infant repeatedly with a fork, a knife and a screwdriver and had attempted to saw off her leg. Police from the 43rd precinct, responding to a 911 call, arrived within five minutes and rushed the child, who was in a coma, to the hospital. The infant plaintiff was hospitalized for 40 days and remains permanently disabled. Frank Sorichetti was convicted of attempted murder and is currently serving a prison sentence. P sued D to recover damages. Special Term denied a motion to dismiss the complaint reasoning that the protective order created a special duty of care. The jury returned a verdict in Ps' favor. D appealed.
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