Opinion
March 1, 2001.
Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about April 28, 1999, which, in an action for personal injuries by a seaman against a shipowner, denied plaintiff's motion to amend the complaint so as to allege "failure to treat" and to seek consequential and punitive damages therefor, unanimously affirmed, without costs.
Saul Rudes, for plaintiff-appellant.
Thomas H. Healey, for defendant-respondent.
Before: Rosenberger, J.P., Andrias, Wallach, Rubin, Buckley, JJ.
The motion was properly denied on the basis of law of the case established by a prior order of this Court reversing a judgment in plaintiff's favor, dismissing plaintiff's claims for consequential and punitive damages and maintenance and cure predicated on mental illness, and remanding for a new trial "solely on plaintiff's claim for maintenance and cure predicated upon findings that he was unfit for duty as of May 18, 19 78" ( 218 A.D.2d 561, appeal withdrawn 87 N.Y.2d 860). The prior order specifically rejected plaintiff's claims for consequential and punitive damages not only as unpleaded but also on the merits (id., at 565, 566), and there is nothing "new" about plaintiff's claim of failure to treat, which closely tracks claims that have already been dismissed. Plaintiff's claim that the $8 a day rate for maintenance and cure set forth in his union's collective bargaining agreement is unconscionably inadequate and should not be enforced (citing, inter alia, Barnes v. Andover Co., 900 F.2d 630 [3d Cir]; Gillikin v. United States, 764 F. Supp. 270 [EDNY]) is improperly raised for the first time on appeal, and we decline to review it.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.