Tenant brought personal injury action against landlord, alleging that landlord acted negligently in removing security wall previously installed by tenant with landlord's consent pursuant to lease provision and that landlord's conduct was substantial factor in causing tenant's injuries by leaving premises vulnerable to criminal activity. The Supreme Court, Kings County, Schneier J., after a jury verdict in tenant's favor on the issue of liability, granted landlord's postverdict motion for judgment as a matter of law, and tenant appealed. The Supreme Court, Appellate Division, held that jury's verdict in favor of tenant should not have been set aside.

Reversed.

[1] Judgment k199(3.7)
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On a postverdict motion for judgment as a matter of law, trial court must determine from the evidence presented at trial whether any rational basis exists for the conclusion on liability reached by the jury; test is not whether the jury erred in weighing the evidence presented, but whether any viable evidence exists to support the verdict. McKinney's CPLR 4404(a).

[2] New Trial k72(9)
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Jury's verdict in favor of tenant on his personal injury claim should not have been set aside; tenant produced evidence from which jury could determine that landlord acted negligently in removing security wall previously installed by tenant with landlord's consent pursuant to lease provision, and it was rational for jury to conclude that landlord's conduct was substantial factor in causing tenant's injuries by leaving premises vulnerable to criminal activity.

**285 Weg & Myers, P.C., New York, N.Y. (Joshua L. Mallin and Dennis T. D'Antonio of counsel), for appellants.

Ann K. Kandel, Hauppauge, N.Y., for respondent.

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, ANITA R. FLORIO and LEO F. McGINITY, JJ.

MEMORANDUM BY THE COURT.

*517 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.

[1][2] 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 **286 v. Gambitsky, 92 A.D.2d 1005, 1006, 461 N.Y.S.2d 466). *518 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).