I. Statement Pursuant to CPLR 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 33-54 were read on this motion. Upon the foregoing papers, Defendants move for summary judgment pursuant to CPLR § 3212. The following papers were read and considered:

1. Notice of Motion dated October 31, 2025;

2. Affirmation of Kathryn M. Cafaro, Esq. in Support, with Exhibits A through K annexed thereto;

3. Plaintiff's Affirmation in Opposition dated November 25, 2025;

4. Defendants' Affirmation in Reply dated December 2, 2025;

5. All pleadings and proceedings heretofore had herein.

This action arises out of a claimed slip-and-fall incident occurring on October 7, 2023, at the exterior stairway of Mike's Unicorn Diner, located at 2944 Victory Boulevard, Staten Island, New York. Plaintiff commenced this action by filing a Summons and Verified Complaint dated September 20, 2024. (NY St Cts Filing [NYSCEF] Doc No. 1). Defendants interposed a Verified Answer on February 12, 2025. (NY St Cts Filing [NYSCEF] Doc No. 4). Plaintiff thereafter served a Verified Bill of Particulars dated April 18, 2025. (NY St Cts Filing [NYSCEF] Doc No. 36). A Note of Issue was filed on September 24, 2025. (NY St Cts Filing [NYSCEF] Doc No. 32).

Defendants now move for summary judgment dismissing the Complaint in its entirety. Plaintiff opposes solely by attorney affirmation. Defendants submit a Reply challenging the legal and evidentiary sufficiency of that opposition.

On the morning of October 7, 2023, Plaintiff Christine Nieves arrived at Mike's Unicorn Diner at approximately 11:10 a.m. It was actively raining at that time. Plaintiff entered the diner by ascending one of the two exterior staircases servicing the entrance and exit of the premises. As she did so, she observed that the steps appeared "extra slippery" and "uneven," describing them as "glossy" and "dented." (NY St Cts Filing [NYSCEF] Doc No. 38 at page 8). Notwithstanding those observations, Plaintiff made no complaint to any employee, agent, or representative of the diner.

Plaintiff remained inside the diner for approximately forty-five to sixty minutes. When she exited at approximately 11:55 a.m., the rain had just ceased, but the entire exterior of the premises, including the landing, steps, and surrounding pavement, remained wet. (see id). Plaintiff elected to descend the same staircase she had used to enter, notwithstanding her earlier perception of slipperiness and despite the availability of an alternate staircase. (NY St Cts Filing [NYSCEF] Doc No. 38 at page 11). When asked why she did not use the other stairway, she testified only that she was "not sure." (NY St Cts Filing [NYSCEF] Doc No. 38 at page 12).

As Plaintiff descended, she held the handrail with her left hand and her pocketbook in her right hand. The slip occurred as she attempted to place her left foot on the second step from the top. Plaintiff unequivocally testified that the cause of her fall was the "extra slipperiness" of the steps. (NY St Cts Filing [NYSCEF] Doc No. 38 at page 8). After the fall, Plaintiff's clothing was wet, and the steps and pavement remained visibly wet. (NY St Cts Filing [NYSCEF] Doc No. 38 at page 12).

Plaintiff testified that she had patronized the diner on several prior occasions and had used the same staircase approximately five times before the accident without incident and without complaint. (NY St Cts Filing [NYSCEF] Doc No. 38 at page 24). Immediately after the fall, Plaintiff's father exited the diner using the same staircase without incident. (NY St Cts Filing [NYSCEF] Doc No. 38 page 11). Defendant Catherine Moudatsos, co-owner of the diner, likewise exited via the same staircase immediately thereafter. (NY St Cts Filing [NYSCEF] Doc No. 38 at pages 12-13).

Ms. Moudatsos testified that she is present at the diner seven days a week, inspects the exterior stairs daily, regularly uses them during rainy conditions, and has never previously [*3]received any complaints about slipperiness or safety. (NY St Cts Filing [NYSCEF] Doc No. 39 at pages 6-7). She further testified that immediately after the incident she observed Plaintiff's footwear and documented that Plaintiff's sneakers were excessively worn and lacked traction. (NY St Cts Filing [NYSCEF] Doc No. 39 at page 12). No prior accidents on the subject stairs were reported. (see id).

Defendants submitted the sworn affidavit and report of Charles J. Schaffer, R.A., NCARB, a licensed architect and certified tribometrist. (NY St Cts Filing [NYSCEF] Doc No. 42). Following physical inspection and calibrated slip-resistance testing, Mr. Schaffer determined that the landing and treads exceeded generally accepted safety thresholds for slip resistance in both wet and dry conditions. (see id). He further concluded that the stairway complied with the applicable provisions of the 1968 New York City Building Code governing the premises and that no code violations existed relative to the subject exterior staircase. (see id).

Plaintiff submitted no affidavit from herself, no affidavit from any eyewitness, and no expert affidavit. Her opposition consists solely of an affirmation by counsel.

A. Summary Judgment Standard

Summary judgment serves as a procedural mechanism for the expeditious disposition of claims that present no genuine issues of material fact. As articulated in Andre v Pomeroy, (35 NY2d 361 [1974]), the remedy is intended to eliminate meritless claims from the trial calendar. Once the movant establishes prima facie entitlement to judgment as a matter of law, the opposing party must produce evidentiary proof in admissible form sufficient to require a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]). Speculation, expressions of hope, and conclusory assertions are legally insufficient.

Defendants have sustained their prima facie burden. The burden therefore shifted to Plaintiff. Plaintiff failed to meet that burden.

B. Absence of a Dangerous or Defective Condition

A landowner's liability depends upon the existence of a dangerous or defective condition and proof that the owner created that condition or had actual or constructive notice of it (Haxhia v Varanelli, (170 AD3d 679 [2d Dept 2019]); Lezama v 34-15 Parsons Blvd., LLC, (16 AD3d 560 [2d Dept 2005]). Summary judgment is warranted where a plaintiff fails to submit evidence that the alleged condition was, in fact, defective (Touloupis v Sears, Roebuck & Co., (155 AD3d 807 [2d Dept 2017]).

Here, Defendants submitted unrefuted expert proof establishing that the exterior stairway exceeded accepted slip-resistance standards in both wet and dry conditions and complied with the governing 1968 Building Code. Plaintiff offered no expert evidence to controvert those findings. The only condition identified by Plaintiff was the presence of rainwater. In the absence of competent proof of a structural defect or unsafe condition, no triable issue of fact exists as a matter of law.

C. Wet Exterior Surfaces Following Rainfall Are Not Dangerous as a Matter of Law

The Appellate Divisions have repeatedly held that "the mere fact that an outdoor walking surface becomes wet from rainfall is insufficient to establish the existence of a dangerous condition" (see Cavort v Winston, 307 AD2d 1018 [2d Dept 2003]; Sadowsky v 2175 Wantagh Ave. Corp., 281 AD2d 407 [2d Dept 2001]). More recently, Friberg v City of New York, (193 AD3d 451 [2d Dept 2021]), reaffirmed that naturally occurring precipitation on exterior walkways does not, without more, create liability.

Plaintiff testified unequivocally that the stairs were wet due to rainfall and identified no substance other than rainwater. As a matter of law, Defendants cannot be charged with negligence for the ordinary and transient effects of weather upon an exterior staircase.

D. Open and Obvious Condition and Plaintiff's Prior Knowledge

There is no duty to warn of an open and obvious condition that is not inherently dangerous (see Capozzi v Huhne, (14 AD3d 474 [2d Dept 2005]; Robbins v 237 Ave. X, LLC, (177 AD3d 799 [2d Dept 2019]). The inquiry focuses upon whether the condition was readily observable and known to the plaintiff.

Here, Plaintiff conceded that she perceived the alleged slipperiness of the steps when she entered the diner, yet voluntarily elected to descend the same staircase upon exiting. Under materially indistinguishable circumstances, summary judgment has been granted where a plaintiff was fully aware of the very condition alleged to have caused the fall (see Luciano v 144-18 Rockaway Realty Corp., 32 AD3d 505 [2d Dept 2006]); Graffino v City of New York, 162 AD3d 990 [2d Dept 2018]). Plaintiff's prior knowledge of the condition bars recovery as a matter of law.

E. Lack of Actual or Constructive Notice

To establish constructive notice, a plaintiff must demonstrate that the condition was visible and apparent for a sufficient length of time to permit discovery and remediation (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Plaintiff testified that she made no complaint prior to her fall. Defendant Moudatsos testified that no prior complaints or similar accidents had ever occurred.

Moreover, where a plaintiff alleges a statutory structural defect, liability may arise only if the violation itself supplies constructive notice (see Guzman v Haven Plaza HDFC, 69 NY2d 559 [1987]). Defendants' expert established that no applicable Building Code provisions were violated. Absent a qualifying statutory violation, no constructive notice may be imputed (see Miki v 335 Madison Ave., 93 AD3d 407 [1st Dept 2012]).

F. No Creation of the Condition

A defendant may be deemed to have "created" a hazardous condition only upon proof of some affirmative act (see Fink v Board of Educ. of City of NY, 117 AD2d 704 [2d Dept 1986]). Here, the wetness complained of resulted exclusively from natural precipitation. Plaintiff alleges no artificial accumulation, no negligent application of fluids, and no improper maintenance. Creation is therefore negated as a matter of law.

G. Plaintiff's Opposition Is Evidentiary Defective

Plaintiff's opposition is supported solely by an attorney's affirmation. Plaintiff submitted no affidavit from herself, no affidavit from any witness, and no expert proof. An attorney's affirmation lacking personal knowledge "has no probative force" (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The Appellate Division has consistently reaffirmed this principle (see Johnson v Phillips, 261 AD2d 269 [1st Dept 1999]; Seiden v Simry Realty Corp., 2010 NY Slip Op 31797[U] [1st Dept 1999]).

Defendants correctly argue in Reply that Plaintiff's opposition consists only of speculation and conjecture unsupported by admissible proof. Plaintiff has therefore failed to raise any triable issue of fact.

The undisputed record establishes that Plaintiff slipped on an exterior staircase that was wet from natural precipitation; that the condition was open, obvious, and actually known to Plaintiff prior to her descent; that the staircase was structurally sound and code-compliant; that Defendants neither created nor had notice of any dangerous condition; and that Plaintiff failed to submit any admissible proof raising a triable issue of fact.

Defendants are therefore entitled to judgment as a matter of law.

Accordingly, it is hereby,

ORDERED that Defendants' motion for summary judgment pursuant to CPLR § 3212 is GRANTED in its entirety; and it is further

ORDERED that the Complaint of Plaintiff Christine Nieves is hereby DISMISSED with prejudice as against all Defendants; and it is further

ORDERED that Defendants shall serve a copy of this Decision and Order with Notice of Entry upon all parties in accordance with the CPLR.