The defendants move for summary judgment dismissing the plaintiff's complaint arguing that there is no issue of material fact regarding liability. The motion is granted.

This is an action to recover for personal injuries allegedly sustained as a result of a fall on the defendants' premises. On August 25, 2009 the plaintiffs, Lea Kirsch and Marvin Kirsch, who reside in Staten Island, New York, visited the Trump Plaza casino in Atlantic City, New Jersey. Trump Plaza Associates, LLC is a foreign limited liability company duly organized under the laws of New Jersey, but is authorized to do business in New York. Trump Entertainment Resorts, Inc. was a foreign corporation organized under the laws of New Jersey and was similarly authorized to do business in New York.

While the plaintiffs were at the Trump Plaza they gambled using slot machines in the "Inca Riches" section of the casino. Lea Kirsch, a then 71 year old female, stood up to change slot machines. As she left the slot machine she had been playing on she fell over a leg rest on an unoccupied wheelchair. During her deposition Lea Kirsch testified as follows:

Q. You were sitting at a slot machine right directly before your accident, where were you looking at that time?

A. I was looking in front of me. [*2]

Q. Did you see the wheelchair before you fell?

A. No.

Q. Did you see the wheelchair after you fell?

A. Yes, because I tripped on it and also when I tripped I tangled my foot. I tried not to fall, and I hold another chair, because, like you say it has a base, doesn't move, but I lost my balance.^[FN1]

The wheelchair at issue here was not a wheelchair owned by Trump Plaza. Instead, it was a wheelchair owned by another guest at the Trump Plaza casino. There had been no complaints about a wheelchair obstructing an aisle conveyed to the defendants; nor had the defendants observed a wheelchair in a dangerous place. During the deposition of William Browning, a security specialist at Trump Plaza, it was determined that the wheelchair did not obstruct the aisle where the plaintiff fell. Browning testified as follows:

Q. As part of your job duties as security specialist, would you also ensure that the aisles are clear?

A. Yes.

Q. And had you observed the wheelchair position like this as shown in Plaintiff's Exhibit 2 of 2/22/12? Would that wheelchair, in your opinion, be in a bad position?

A. No.

Q. And, generally, if a wheelchair patron would be using a slot machine, where would they place the wheel chair?

A. Usually on the end of the slot area even if they are down the aisle. They will put it right there on the end.^[FN2]

Trump Plaza moves for summary judgment dismissing the plaintiffs' complaint. In opposition to the defendants' motion, the plaintiff, Lea Kirsch, submits an affidavit where at paragraph six she attempts to expand her deposition testimony as follows:

I did not see the wheelchair before my fall. The reason I did not see the wheelchair is because it was parked up against the slot machine I was leaving from. The wheelchair could not be seen from my view at the slot machine. The slot machine blocked my view of the wheelchair.

A motion for summary judgment must be denied if there are "facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Granting summary judgment is only appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. "Moreover, the parties competing contentions must be viewed in a light most favorable [*3]to the party opposing the motion".^[FN3] Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable.^[FN4] As is relevant, summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law.^[FN5] On a motion for summary judgment, the function of the court is issue finding, and not issue determination.^[FN6] In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.^[FN7]

In order to state a cause of action for negligence as to real property a plaintiff must demonstrate that the defendant failure to maintain the property in a reasonably safe condition that was the proximate cause of the plaintiff's damages.^[FN8] Moreover, the plaintiff must demonstrate that ". . . defendant's negligence was a substantial cause of the events which produced the injury."^[FN9] Consequently, there must be evidence that a dangerous or defective condition existed, and that the defendant created the condition or had actual or constructive notice of the condition.^[FN10]

Here, the facts of this case demonstrate that the defendants neither created the alleged defect;^[FN11] nor is there any evidence that the defendants had actual or constructive notice of the wheelchair placement.^[FN12] Consequently, the defendants have demonstrated a prima facie entitlement to judgment as a matter of law. [*4]

The Americans With Disabilities Act permits the use of wheelchairs in places of public assembly such as casinos. Accordingly, patrons should take heed to avoid interfering with them.^[FN13]

At the outset the court must state that it is not considering the affidavit of Lea Kirsch submitted in opposition to the defendants' motion for summary judgment. The affidavit purports to give a different account then the one testified to at her deposition. Consequently, it must be rejected.^[FN14] In any event, the expanded testimony that the plaintiff could not observe the wheelchair contained in her affidavit would only rebut the defendants' argument concerning whether the subject wheelchair was an open and obvious condition. The plaintiffs have not come forward with any evidence that Trump Plaza either created the alleged dangerous condition, or

had notice of it. Consequently, the complaint is dismissed.

Accordingly, it is hereby:

ORDERED, that the defendants' motion for summary judgment is granted and the plaintiffs' cause of action is dismissed; and it is further

ORDERED, that the Clerk is directed to enter judgment in favor of the defendants accordingly.

ENTER,

DATED: May 13, 2013

Joseph J. Maltese

Justice of the Supreme Court