Sorichetti by Sorichetti v. City of New York

• Decision Date: 09 July 1985
• Citation: 65 N.Y.2d 461,492 N.Y.S.2d 591
• Parties: , 482 N.E.2d 70, 54 USLW 2062 Dina A. SORICHETTI, an Infant, by Her Mother and Natural Guardian, Josephine SORICHETTI, et al., Respondents, v. CITY OF NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 591

492 N.Y.S.2d 591

65 N.Y.2d 461, 482 N.E.2d 70, 54 USLW 2062

Dina A. SORICHETTI, an Infant, by Her Mother and Natural Guardian, Josephine SORICHETTI, et al., Respondents, v. CITY OF NEW YORK, Appellant.

Court of Appeals of New York.

July 9, 1985.

Frederick A.O. Schwarz, Jr., Corporation Counsel, New York City (Alfred Weinstein, Leonard Koerner and Francis F. Caputo, New York City, of counsel), for appellant.

Fred Queller, Martin S. Rothman, Alyne I. Diamond and Jeffrey E. Rothman, New York City, for respondents.

OPINION OF THE COURT

ALEXANDER, Judge.

This action was commenced against the City of New York (City) by Dina Sorichetti, an infant, and her mother, Josephine Sorichetti, to recover damages resulting from injuries inflicted on Dina by her father, Frank Sorichetti. Plaintiffs' theory of recovery is that the City, through the New York City Police Department, negligently failed to take Frank Sorichetti into custody or otherwise prevent his assault upon his daughter after being informed that he may have violated a Family Court order of protection and that he had threatened to do harm to the infant. Special Term denied a pretrial motion by the City to dismiss the complaint for failure to state a cause of action (95 Misc.2d 451, 408 N.Y.S.2d 219), and the Appellate Division affirmed (70 A.D.2d 573, 417 N.Y.S.2d 202).

A jury thereafter returned a verdict in plaintiffs' favor in the amount of $3,000,000 for the infant and $40,000 for the mother. The Appellate Division modified by ordering a new trial on damages unless Dina Sorichetti stipulated to reduce her award to $2,000,000, 102 A.D.2d 709, 476 N.Y.S.2d 257. The infant so stipulated and judgment was entered in the reduced amount. We granted the City's motion for leave to appeal from the judgment, bringing up for review the prior nonfinal Appellate Division order (CPLR 5501).

To uphold the award of damages in this case, we must determine whether a special relationship existed between the infant and the municipality by virtue of (1) the issuance of a judicial order of protection directing Frank Sorichetti to refrain from threatening or assaulting his wife and providing that the order constituted authority for a peace officer to arrest a person charged with violating its terms; and (2) the police department's knowledge of Frank Sorichetti's history of assaultive and abusive conduct toward his family and his immediate threats of harm to his daughter and its response to Josephine Sorichetti's pleas for assistance.

Josephine and Frank Sorichetti were married in 1949, and had three children, the youngest being Dina, who was born in 1969. It appears that Frank drank excessively and that the couple's relationship was quite stormy, with Frank becoming violent and abusive when under the influence of alcohol. In January 1975, Josephine obtained an order of protection in Family Court following a particularly violent incident in which her husband had threatened her and punched her in the chest so forcefully as to send her "flying across the room." The order recited that Frank was "forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward" Josephine. By June 1975, Frank's drinking and abusiveness had intensified. Consequently, Josephine moved out of their residence and took her own apartment. Upon her return in early July 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. The police were summoned from the 43rd precinct, but Frank had fled by the time they arrived. A second order of protection was issued by Family Court and a complaint filed in Criminal Court by Josephine. Frank was arrested by detectives from the 43rd precinct, but Josephine subsequently dropped both the Family Court and criminal charges based on Frank's promise to reform.

Frank's drinking and violent behavior continued, however, and in September 1975, Josephine served divorce papers on him. Frank became enraged and proceeded to destroy the contents of their apartment. He broke every piece of furniture, cut up clothes belonging to his wife 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 Josephine's home. During the ensuing months, 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". Josephine reported these incidents to the 43rd precinct. Additionally, Frank created disturbances at Josephine'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, Josephine and Frank appeared in Family Court where the order of protection was made final for one year. Included in the order was a provision granting Frank visitation privileges with his daughter each weekend from 10:00 a.m. Saturday until 6:00 p.m. Sunday. It was agreed that Dina would be picked up and dropped off at the 43rd precinct. As required by Family Court Act § 168, the order also recited that: "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."

On the following weekend, Josephine delivered Dina to her husband in front of the 43rd precinct at the appointed time. As he walked away with the child, Frank turned to Josephine 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. Josephine understood her husband's 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." She also reported the past history of violence inflicted by Frank. The officer told Josephine that because her husband had not "hurt her bodily--did not touch her" there was nothing the police could do. Josephine then returned home.

At 5:30 p.m. the following day, Sunday, Josephine returned to the station house. She was distraught, agitated and crying. She approached the officer at the front desk and 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 as well as the prior incidents and Frank's history of drinking and abusive behavior. The officer testified that he told Josephine that if "he didn't drop her off in a reasonable time, we would send a radio car out."

The officer referred Josephine to Lieutenant Leon Granello, to whom she detailed the prior events. He dismissed the protective order as "only a piece of paper" that "means nothing" and told Josephine to wait outside until 6:00. At 6:00 p.m., Josephine returned to the Lieutenant who told her, "why don't you wait a few minutes * * * Maybe he took her to a movie. He'll be back. Don't worry about it." Josephine made several similar requests, but each time was told "to just wait. We'll just wait." In the meantime, at about 5:20 or 5:30, Officer John Hobbie arrived at the station house. He recognized Josephine, who by then was hysterical, from prior incidents involving the Sorichettis. Specifically, just a few months previously, on June 28, 1975, Hobbie had intervened in an altercation in which Frank, while intoxicated and being abusive, had tried to pull Dina away from a babysitter, cursing and saying, "if I don't have her, the mother shouldn't have her." Hobbie had taken Frank, Dina and the babysitter to the 43rd precinct, where a decision was made not to let Frank have the child. Frank had started cursing and became loud and abusive. He calmed down somewhat when threatened with removal from the station house, and left when told that the police were holding the child until her mother arrived. In a second incident on October 9, 1975, Officer Hobbie transferred Frank to a hospital for detoxification following Frank's arrest by officers of the 43rd precinct for driving while intoxicated.

After speaking with Josephine on November 9, 1975, Officer Hobbie informed Lieutenant Granello of his prior experiences with Frank. He told the Lieutenant that Sorichetti was a "very violent man" and that Dina was "petrified" of him. Officer Hobbie recommended that a patrol car be sent to Sorichetti's home. Lieutenant Granello rejected this suggestion, contending initially that no patrol cars were available and later that "not enough time hagone by."

At 6:30, Lieutenant Granello suggested that Josephine call home to see if Dina had been dropped off there. She did so and was informed that the child was not there. She continued to plead that the officer take immediate action. The Lieutenant again told Josephine "Let's just wait". At 7:00, the Lieutenant told Josephine 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 Sorichetti's sister entered her apartment and found him passed out on the floor with an empty whiskey bottle and...