DiIorio v. Gibson & Cushman of New York, Inc.

167 A.D.2d 267 | N.Y. App. Div. | 1990

Amended judgment, Supreme Court, New York County (Ira Gammerman, J.), entered on October 12, 1989, which awarded plaintiff the total sum of $2,030,201, and orders of said court and Justice entered on November 24, 1989 and on or about April 16, 1990, which, respectively, denied plaintiff’s motion for further amendment of the judgment and denied defendant’s motion to vacate the amended judgment, unanimously affirmed, without costs and disbursements.

As the question of prejudgment interest was not presented to the jury in this maritime personal injury action, the court is without authority to award it. (Pires v Frota Oceanica Brasileira, 161 AD2d 129, 132; Havis v Petroleum Helicopters, 664 F2d 54, 55.) Even without that rule, plaintiffs failure to seek prejudgment interest in connection with the original judgment, which this court modified to reduce the award for future earnings (151 AD2d 402), would act as a waiver of any claim with respect thereto. As to whether $600,000, the amount of the earlier settlement in a related action against a nonparty joint tort-feasor, should have been deducted from the damage award, our prior determination is the law of the case. (See, Locilento v Coleman Catholic High School, 134 AD2d 39, 43.) In any event, while plaintiff urges that maintenance and cure paid in exchange for a release cannot be deducted from a damage award, there is nothing in this record to suggest that the $600,000 was paid as maintenance and cure, which is "designed to provide a seaman with food and lodging when he becomes sick or injured in the ship’s service” (Vaughan v Atkinson, 369 US 527, 531); the $600,000 payment was made in connection with a broad general release executed in full settlement of the related action. Concur—Sullivan, J. P., Carro, Kassal and Wallach, JJ.