Future Pain-and-Suffering Damages Do Not Require a “Permanent Injury” Finding; Unsafe Backing Under VTL § 1211(a) Is Negligence Per Se — A Second Department Benchmark on Remittitur for Post-Spinal-Surgery Claims

Introduction

In Usoiani v. Dumbo Moving & Storage, Inc. (2025 NY Slip Op 04811), the Appellate Division, Second Department, clarified two recurrent issues in New York personal injury practice: (i) the scope of a jury’s authority to award future pain-and-suffering damages under the No-Fault “serious injury” framework, and (ii) liability in “unsafe backing” collisions under Vehicle and Traffic Law § 1211(a). The Court also set a concrete benchmark for remittitur of future pain-and-suffering verdicts involving spinal surgeries, thereby influencing valuation and settlement strategy in comparable cases.

The plaintiffs, Paata Usoiani and Vitalii Kasoev, were passengers in a vehicle stopped when a box truck owned by Dumbo Moving & Storage, Inc. and operated by its driver, Shalva Kunelauri, backed into them. The trial court granted the plaintiffs summary judgment on liability against Dumbo and Kunelauri and, after a damages trial, a jury awarded substantial sums, including future pain-and-suffering damages of $2,020,000 (Usoiani) and $2,150,000 (Kasoev). Dumbo and Kunelauri appealed from two judgments, challenging liability, jury procedures, and the damages awards (including requests for a collateral source hearing under CPLR 4545).

Summary of the Judgment

Liability: The Second Department affirmed summary judgment for the plaintiffs on liability against Dumbo and Kunelauri. The driver’s unsafe backing into a stopped vehicle violated VTL § 1211(a) and constituted negligence per se; defendants failed to raise a triable issue of fact in opposition.
Jury Procedure: Defendants’ challenge to the trial court’s directive for further jury deliberations was unpreserved; they acquiesced and did not object at trial (CPLR 4017, 5501[a][3]).
Future Pain and Suffering: The Court held that a jury may award future pain-and-suffering damages even where it finds a “significant limitation of use” rather than a “permanent consequential limitation.” Conditioning future damages on a finding of “permanent injury” would be error.
Remittitur: The Court found the future pain-and-suffering awards excessive under CPLR 5501(c) and ordered remittitur to $1,500,000 for each plaintiff or, failing stipulation, a new trial limited to future pain and suffering.
Medical Expenses: Awards for past and future medical expenses were supported by competent evidence and were affirmed.
Collateral Source: Defendants’ request for a CPLR 4545 hearing was rejected; remaining contentions were deemed without merit.

Analysis

Precedents Cited and Their Influence

The decision draws on a coherent line of Second Department cases addressing liability, preservation of error, and damages calibration:

Unsafe Backing and Negligence Per Se: The Court reaffirmed that violation of VTL § 1211(a) (prohibiting unsafe backing) constitutes negligence per se. It relied on Dieubon v. Moore, 229 AD3d 686, 687, concluding that backing into a stopped vehicle without precautions breaches a legislatively prescribed standard of care. The companion appeal decided the same day (Usoiani v. Dumbo Moving & Storage, Inc., App. Div. Docket Nos. 2020-03849, 2020-04431) confirmed defendants failed to create a triable issue, locking in liability as a matter of law.
Preservation of Error: By invoking CPLR 4017 and 5501(a)(3), the Court emphasized the contemporaneous objection rule. The defendants’ acquiescence to the trial court’s directive sending the jury back to deliberate foreclosed appellate review of that procedure.
Future Damages Without “Permanent Injury”: The Court relied on Gallagher v. Samples, 6 AD3d 659, 660; Rizzo v. DeSimone, 6 AD3d 600, 601; Sescila v. Garine, 225 AD2d 684, 685; Prieston v. Massaro, 107 AD2d 742, 743–44; Bellamy v. Kaplan, 309 AD2d 583; and Preston v. Young, 239 AD2d 729, 732, to reaffirm that:
- A finding of “significant limitation of use of a body function or system” is sufficient to support future damages; future damages are not contingent on a separate finding of “permanent consequential limitation.”
- Once a plaintiff establishes a “serious injury,” the trier of fact may award all damages causally related to the accident, including future pain and suffering.
- A permanent injury may be subsumed within “significant limitation,” but permanence is not a gatekeeping requirement for future damages.
Excessiveness and Comparable Awards: Applying CPLR 5501(c), the Court compared analogous verdicts to determine whether the jury’s future pain-and-suffering awards “deviate materially from what would be reasonable compensation” (see Mujica v. Nassau County Corr. Facility, 231 AD3d 1046; Pecoraro v. Tribuzio, 212 AD3d 646, 647; Ciuffo v. Mowery Constr., Inc., 107 AD3d 1195, 1197). The Court anchored its remittitur to $1,500,000 using Nieva-Silvera v. Katz, 195 AD3d 1035; Starkman v. City of Long Beach, 148 AD3d 1070; and cf. Pimenta v. 1504 Cia, LLC, 197 AD3d 670.
Medical Expenses: The sufficiency of evidence standard was drawn from Abedin v. Osorio, 216 AD3d 708, 709, and Wynter v. Transdev Servs., Inc., 207 AD3d 785, 787, to affirm past and future medical expense awards.

Legal Reasoning

The Court’s reasoning proceeds in three principal steps:

Liability via Statutory Negligence Per Se:
Plaintiffs established prima facie negligence by showing the Dumbo driver backed into a stopped vehicle without precautions, contravening VTL § 1211(a). Because the statute articulates a specific standard of conduct, its unexcused violation constitutes negligence per se. The defendants failed to rebut with evidence creating a material factual dispute, warranting summary judgment on liability.
Preservation and Jury Procedure:
Appellate review requires a timely objection. By not objecting—and indeed acquiescing—to the trial court’s directive for further juror deliberations, defendants forfeited this claim. CPLR 4017 mandates contemporaneous objection to trial rulings; CPLR 5501(a)(3) confines appellate review accordingly.
Damages: Future Pain and Suffering and Remittitur:
The Court rejected the defense premise that future pain-and-suffering damages require a finding of permanent injury. The jury’s finding of “significant limitation of use” sufficed, and an instruction conditioning future damages on a permanence finding would have been legal error.

Nonetheless, the Court exercised its CPLR 5501(c) discretion to reduce the future pain-and-suffering awards. Recognizing that pain-and-suffering awards are inherently subjective, the Court calibrated the verdicts against comparable cases, while considering the nature and extent of the injuries, ongoing symptoms, functional limitations, and treatment:
- Kasoev: Underwent lower-back spinal fusion; lost ability to engage in activities like soccer and running; restricted heavy lifting; daily over-the-counter pain medication.
- Usoiani: Underwent cervical spine surgery and knee surgery; continued neck pain requiring daily medication.
- Both plaintiffs: Anticipated future medical treatment.
Weighing these factors against prior awards, the Court found $1,500,000 to be reasonable compensation for future pain and suffering for each plaintiff. It ordered remittitur to that figure or, if not accepted, a new trial limited to future pain and suffering.

As to economic damages, the record contained competent evidence supporting the awards for past and future medical expenses, which were therefore affirmed.

The Court summarily rejected remaining arguments, including the request for a collateral source hearing under CPLR 4545.

Impact

This decision will resonate across several aspects of New York personal injury practice:

Future Damages Not Tethered to Permanency: The Second Department explicitly reiterates that juries can award future pain and suffering upon a finding of “significant limitation of use,” even absent a finding of “permanent consequential limitation.” That clarification forecloses a common defense argument and cautions trial courts against erroneous jury instructions conditioning future damages on permanence.
Liability in Unsafe Backing: The case reinforces that VTL § 1211(a) violations constitute negligence per se. Plaintiffs will continue to rely on this provision for summary judgment where a vehicle backs into another without adequate precautions. Defendants must marshal specific evidence of precautions or exculpatory circumstances to defeat summary judgment.
Valuation Benchmarks for Spinal Surgery Cases: By setting remittitur to $1,500,000 for future pain and suffering given the particular surgeries and ongoing limitations described, the Court provides a concrete valuation anchor in the Second Department. Plaintiffs and defendants alike can use this benchmark to evaluate settlement and assess exposure in analogous surgical-injury cases.
Trial Practice and Preservation: The Court’s preservation holding is a practical reminder: failure to object contemporaneously to jury-management procedures (e.g., directives for further deliberations) will bar appellate review. Counsel must create a clear record to preserve such issues.
Collateral Source Hearings: The summary rejection of defendants’ request under CPLR 4545 underscores the necessity of a concrete evidentiary proffer demonstrating with reasonable certainty collateral source payments before a hearing will be ordered or an award reduced.

Complex Concepts Simplified

Negligence Per Se: When a statute sets a specific safety rule (like “do not back a vehicle unless it can be done safely”), violating that rule is automatically considered negligence as a matter of law, provided the violation caused the injury. The plaintiff still must prove causation and damages.
VTL § 1211(a) — Unsafe Backing: New York’s statute prohibits backing a vehicle unless the movement can be made with safety and without interfering with other traffic. Backing into a stopped car is a textbook violation, absent unusual circumstances.
No-Fault Serious Injury Threshold: New York Insurance Law § 5102(d) lists categories like “significant limitation of use” and “permanent consequential limitation.” A plaintiff who proves any “serious injury” category can recover non-economic damages. Importantly, proving “significant limitation” does not require the jury to also find “permanent” injury in order to award future pain and suffering.
CPLR 4404(a): After a jury verdict, a party may ask the court to set it aside as a matter of law (insufficient evidence), as against the weight of the evidence, or in the interest of justice; the court can order a new trial or alter the verdict in certain ways.
CPLR 5501(c) — Material Deviation Standard: An appellate court can reduce or increase a damages award if it “deviates materially” from what’s reasonable by comparing the case with similar cases and considering the injury’s nature, permanence, and the plaintiff’s pain and limitations.
Remittitur: A court’s conditional reduction of a jury award. The prevailing party may accept the reduced amount or opt for a new trial limited to the affected damages category.
CPLR 4017 and Preservation: To obtain appellate review of a trial ruling (like a jury instruction or deliberations procedure), a party must object on the record when the issue arises. Silence or acquiescence usually forfeits the claim.
CPLR 4545 — Collateral Source: Allows a court to reduce certain damages (e.g., medical expenses) by amounts that will, with reasonable certainty, be paid by collateral sources (like insurance) to avoid double recovery. A hearing generally requires a specific evidentiary showing by the party seeking the offset.

Conclusion

Usoiani v. Dumbo Moving & Storage, Inc. is a significant Second Department opinion for both liability and damages. On liability, the Court reaffirms that unsafe backing in violation of VTL § 1211(a) is negligence per se and supports summary judgment where the record shows a rearward impact into a stopped vehicle without precautions. On damages, the Court delivers two important messages: juries may award future pain and suffering without a finding of “permanent” injury, and a $1,500,000 remittitur for future pain and suffering is reasonable in comparable post-spinal-surgery scenarios involving ongoing but managed pain and functional restrictions.

For litigators, the opinion offers practical lessons. Plaintiffs can confidently seek future damages upon a “significant limitation” finding and press liability under VTL § 1211(a) in unsafe-backing cases. Defendants, for their part, must timely preserve objections, present robust comparables to challenge non-economic damages, and supply a concrete proffer for any collateral source reduction. In the broader legal landscape, the decision tightens doctrinal clarity on serious-injury damages and sets a workable valuation benchmark, likely to inform settlements and verdicts across the Second Department.