New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK, #2007-016-028, Claim No. 103879


Claimant failed to prove that she fell by a courthouse elevator because of defendant’s negligence.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Joel B. Savit, P.C.
By: Dalli & Marino, LLPBy: John Dalli, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ellen S. Mendelson, AAG
Third-party defendant’s attorney:

Signature date:
July 2, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of the claim of Beatrice Jordan that defendant’s negligence was the cause of her fall in the building that houses the Bronx County Family Court. On the afternoon of May 22, 2000, Ms. Jordan took her daughter, Vermel, who was then 14 years old, to Family Court, because Ms. Jordan believed that she needed court-ordered assistance to ensure Vermel’s regular school attendance, among other things.
By the end of the day, the paperwork had been completed on claimant’s Petition to have her daughter determined to be a Person in Need of Supervision (PINS). It was what occurred earlier in the afternoon that gave rise to this lawsuit. Ms. Jordan and Vermel had arrived at the Courthouse at approximately 2 to 2:30 p.m., inquiring about a PINS petition and were directed to the second floor, where Jordan testified that, “they gave me a paper and they sent me to the sixth floor.”
Claimant recalls waiting about 30 to 45 minutes with her daughter sitting next to her, and then she testified that Vermel “got up and said she wasn’t waiting anymore and she just walked off.” The fourteen-year-old started toward the bank of elevators and her mother followed her. Jordan testified that she asked her where she was going, and Vermel replied, “I’m leaving.” Claimant described what happened next:
So the elevator door opened and she got in . . . I held the door open so she wouldn’t be able to go down, so the elevator door wouldn’t close and she wouldn’t go downstairs, and I called for help . . . I yelled out, “My daughter is trying to leave, I need some help.”

Claimant said that an officer “finally” came over. Jordan said she was holding the elevator door, told the officer that she needed help, and he responded, “Do what you have to do.” In her deposition of July 28, 2004, claimant indicated that this was not what she had expected; she thought the officer would tell her daughter to come out of the elevator ” (def exh C, p. 50). This officer was never identified by claimant.
Continuing with her trial narrative, Jordan said the officer, “held the door open with his body and I walked into the elevator to talk to my daughter to convince her to stay . . . [and] get a signed document.” They finished their conversation and, “as I turned to, to motion to walk out of the elevator, the officer let the door go and went his way and as he let the door go it hit me on my right side and I fell backwards and I heard my leg snap.”
Claimant, relying on the foregoing testimony, contends that while the officer may not have had a duty to hold the elevator door in the first place, once undertaking to do so, he was obligated to perform the duty in a non-negligent manner. See page two of claimant’s post-trial Letter Brief, dated April 26, 2007, citing Gordon v Muchnick, 180 AD2d 715, 579 NYS2d 745 (2d Dept 1992).
In any event, whether or not there was an assumption of duty, claimant has not persuaded this trier of fact that the incident happened as she described it, i.e., that the proximate cause of her fall and resulting injury was negligence on the part of the unnamed officer. There is a substantial question that Jordan fell as she said she did -- substantial enough to prevent claimant from satisfying her burden of proof.
Court Officer John Bitsko, who filled out the Aided Report as to Ms. Jordan’s fall, testified at trial (def exh B). Officer Bitsko had worked at the Bronx Family Court since 1990, was on duty the day of Jordan’s fall, and has been assigned there since. On May 22, 2000, Bitsko was summoned by radio call that there was a person in need of assistance on the sixth floor; he may have been on that floor, or on the floor above, when he received the call. He proceeded to the area outside the elevator banks on the sixth floor, where he found Ms. Jordan lying on the floor about five to ten feet from the elevator doors.
On the stand, the officer stated that he asked claimant if she was okay and what had happened; he recalled the following exchange:
Q. And what did she tell you when you asked her what happened?
A. That she had an altercation with her daughter, the daughter pushed her and she fell.

Q. Did she mention at that point in time that any other Court Officer had been involved in the altercation?
A. No.

Q. Did she mention at that time that any other Court Officer had been holding the elevator doors open for her and her daughter?
A. No.

In the Aided Report, filled out at the end of that day, Bitsko wrote, “the above named was knocked to the floor by her daughter and was complaining of severe pain in her left ankle.” Ms. Jordan’s admission was not in quotation marks and when asked about the reference on voir dire, the officer indicated that he did not recall if such was an exact quote, but repeated his testimony that Ms. Jordan had told him that she and her daughter had had an altercation, and that her daughter had pushed her and she had fallen to the floor.
Bitsko was a straightforward, credible witness with a definite recollection of the events of that day. Moreover, the PINS Petition signed by Ms. Jordan also contained the admission that the Respondent (Vermel) “was physically abusive towards [claimant] in the Court House, pushing her . . .” (def exh A, p. 2).
There were other instances in Jordan’s testimony, aside from her admissions, that undercut her trial testimony. At her deposition, claimant was vague as to her position relative to the elevator and to the unidentified court officer, stating, “I don’t quite remember. I was just there.” (Def exh C, p. 42). Finally, at the deposition, Ms. Jordan maintained that she could not recall whether there had been any past physical encounters with Vermel:
Q. Had your daughter ever on any prior occasion hit you, pushed you or hurt you?
A. No.

Q. Any occasion prior to that day?
A. No. Not that I - - verbal.

Q. But anything physical?
A. No, not that I remember.

(Id., pp. 63-64).

The PINS Petition, in addition to the above-mentioned reference to Vermel pushing her mother at the courthouse, contained the general statement that Vermel “is verbally and physically abusive” to her mother (def exh A, p. 2).
The credible evidence fails to satisfy claimant’s burden on the essential factual issue of what caused her to fall. It is unnecessary thus to reach the issue of whether the facts as claimant described them would give rise to an assumed duty at the elevator by the unidentified court officer.
In view of the foregoing, the claim of Beatrice Jordan (no. 103879) is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.

July 2, 2007
New York, New York

Judge of the Court of Claims

  1. [1] It might be noted that the only case claimant cites for this proposition, Gordon v Muchnick, supra, involved defendant guiding plaintiff across the street, out of the crosswalk and into a lane of moving traffic.