25 A.D.2d 770 | N.Y. App. Div. | 1966
In an action to recover damages for personal injuries allegedly suffered through, in part, the negligence of defendant the City of New York, plaintiff appeals from a judgment of the Supreme Court, Kings County,
In my opinion, the circumstances relied upon in the majority decision do not spell out liability on defendant city’s part: (a) The police officer’s alleged failure to adhere to plaintiff’s request in October, 1955 to effectuate the order of protection at plaintiff’s home was not the proximate cause of plaintiff’s injury on November 2, 1955, in the premises of the former Domestic Relations Court. 'The evidentiary value of this piece of information was not heightened by its later disclosure to Painter, (b) On November 2, 1955, neither Painter’s alleged failure to safeguard plaintiff nor the lack of police officers and attendants was the proximate cause of plaintiff’s injury. Painter was merely informed that plaintiff was “afraid” of remaining in proximity to her husband, not that the husband was currently manifesting such vicious propensities as indicated that he was likely to assault plaintiff and to disregard his training as a peace officer by perpetration of criminal acts. Even assuming that the husband had previously misbehaved, there is no presumption that he was likely to repeat his prior offense. In addition, there was no proof that any of the police officers or attendants had been informed of any unseemly deportment on the husband’s part, (e) There is no basis for the proposition that the order of protection served to convert the defendant city’s duty to provide general police protection into a special obligation to use extraordinary measures for safeguarding plaintiff. The statute, pursuant to which the order of protection was issued (former Domestic Relations Ct. Act, § 92, subd. [7]) and the procedural section which now provides for enforcement thereof, in apparent conformity with previous practice, plainly contemplate that such order constitutes authorization to any peace officer “to take into custody a person