370 HAMILTON AVENUE CORP v. ALLIED OUTDOOR ADVERTISING INC (1999)

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Schneier J.), dated December 19, 1997, as, after a jury verdict in their favor on the issue of liability, granted the defendant's motion pursuant to CPLR 4404 for judgment as a matter of law.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a trial on damages.

 On a postverdict motion for judgment as a matter of law (see, CPLR 4404[a] ):

“the trial court must determine from the evidence presented at trial whether any rational basis exists for the conclusion on liability reached by the jury (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Palermo v. Gambitsky, 92 A.D.2d 1005, 1006, 461 N.Y.S.2d 466).   The test is not whether the jury erred in weighing the evidence presented, but whether any viable evidence exists to support the verdict (Barker v. Bice, 87 A.D.2d 908, 449 N.Y.S.2d 369)” (Kozlowski v. City of Amsterdam, 111 A.D.2d 476, 477, 488 N.Y.S.2d 862).

Here, the plaintiffs produced ample evidence from which the jury could rationally determine that the defendant acted negligently in removing a security wall previously installed by the plaintiffs with the defendant's consent pursuant to a lease provision which expressly authorized the plaintiff tenant to provide appropriate security measures for the leasehold premises.   Furthermore, it was rational for the jury to conclude from the evidence that the defendant's conduct was a substantial factor in causing the injuries to the plaintiff Sheldon Seidman by leaving the premises vulnerable to criminal activity.   Accordingly, the verdict in favor of the plaintiffs on the issue of liability was erroneously set aside and must be reinstated (see generally, Matter of Tokarz, 199 A.D.2d 400, 605 N.Y.S.2d 365).

MEMORANDUM BY THE COURT.