During trial on November 13, 2006 defendant moved for a directed verdict at the close of plaintiff's case on the grounds that a prima facie cause of action had not been established. Decision was reserved.

On November 14, 2006, after a jury verdict was returned against defendant on liability and damages were assessed in the amount of $58,500.00, defendant moved to set aside the jury's verdict

as not supported by sufficient evidence. Defendant asserted that trial testimony established that there was a mat on a smooth dry tile floor and absent competent evidence of a defect in the surface of the floor or evidence of deviation from relevant industry standards, the mere fact of a fall on a smooth surface will impose no liability; and that as a consequence the jury could not determine that the combination of the mat and the tile floor where she fell was not reasonably safe.

Upon the foregoing papers, defendant's motion to set aside the verdict as unsupported by sufficient evidence (see, CPLR 4404[a]) is denied.

This is a negligence action to recover damages for personal injuries sustained when plaintiff slipped and fell when she stepped on a throw rug placed on a tile floor inside a doorway of defendant's home. Plaintiff testified that the rug flew out from under her foot when she [*2]stepped upon it.^[FN1]

The court notes that there was an affirmative finding by the jury that a mat was present on the floor at the location where the plaintiff fell; that the combination of the mat and the tile floor where plaintiff fell was not reasonably safe; and that defendant was negligent in not keeping the location where plaintiff fell in a reasonably safe condition. At issue, therefore, is whether the verdict

as to liability was supported by legally sufficient evidence.

The power of a trial court to exercise its discretion and set aside a jury verdict is a broad one, intended to ensure that justice is done (see, Micallef v Miehle Co, 39 NY2d 376; Nicastro v Park, 113 AD2d 129). However, "[the] fact that determination of a motion to set aside a verdict involves judicial discretion does not imply...that the trial court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, not the trial court, and a court must act warily lest overzealous enforcement of its duty to oversee the proper administration of justice leads it to overstep its bounds and unnecessarily interfere with the fact finding function of the jury to a degree that amounts to an usurpation of the jury's duty'" (Nicastro v Park, supra at 133, quoting from Ellis v Hoelzel, 57 Ad2d 968,969).

The record herein establishes that an unsecured throw rug without an appropriate backing was placed on a smooth dry tile floor. Notwithstanding defendant's urging to the contrary, the theory of liability was not that there was a defect in the surface of the floor, or that there was some deviation from relevant industry standards or that the floor had or did not have a slippery surface. Liability was determined based upon a jury finding that the combination of the mat/throw rug on the tile floor was not reasonably safe; that defendant was negligent in allowing the unsafe condition to exist and that this negligence was a substantial factor in causing plaintiff to fall and sustain injuries.

Accordingly, the Court finds that testimony at trial was sufficient to establish a prima facie case of negligence against defendant and that viewed in the appropriate light it was sufficient to establish that the floor where the incident occurred was tile, ie., hard and smooth and that the mat did not have an appropriate backing to prevent it from moving when stepped on (see, [*3]Napolitano v Dhingra, 249 AD2d 523). ^[FN2] The defendant also argues that lack of notice negates a finding of liability. On the question of notice, the Court finds that evidence, particularly defendant's testimony, was sufficient to give rise to the conclusion that defendant was aware of the dangerous condition and that this condition existed for a sufficient period to afford the defendant, in the exercise of reasonable care, an opportunity to correct it.

Accordingly, it is

ORDERED, that defendant's motion is denied in all respects.

This constitutes the decision and Order of the Court.

Law Clerk to notify both sides of this Decision/Order.

Dated: February 1, 2007ENTER:

/s/

HON. THOMAS P. ALIOTTA, JSC