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Gottwald v Sebert

Supreme Court of New York, New York County

August 31, 2018, Decided





Plaintiffs Lukasz Gottwald, Kasz Money, Inc. and Prescription Songs, LLC commenced this action against defendant Kesha Rose Sebert (Kesha) alleging that she and others "hatched a campaign ... designed to ruin Gottwald's business reputation" by spreading "false, disgusting and highly damaging statements ... to numerous third parties ... that Gottwald purportedly raped Kesha nearly a decade ago" and that he also raped another female recording artist (Dkt 1215 [Second Amended Complaint (SAC)] ¶¶ 2, 4, 64-65, 88-99).1 The parties substantially completed discovery. Through discovery, plaintiffs were able to learn more about Kesha and her agents' dissemination of the allegedly defamatory statements that were the subject of the SAC.2 In anticipation of  [**2]  trial, plaintiffs served an amended bill of particulars (Dkt 1221 [the Amended BOP]), in which they notified Kesha of their precise allegations. In response, Kesha professed surprise and this motion practice ensued.3

Kesha moves to strike the Amended BOP, urging that plaintiffs are improperly seeking to "enormously expand the case" years after it was [*2]  commenced (Dkt 1466 at 6). Plaintiffs oppose the motion and cross-move for leave to serve a proposed third amended complaint (PTAC) (Dkt 1522) that includes the allegations in the Amended BOP. Because leave to amend is liberally granted and Kesha not only had notice of plaintiffs' proposed amendments, she already obtained discovery relevant to them,4 plaintiffs' cross-motion is granted and Kesha's motion is denied.5

It is well established that leave to amend should be granted freely unless the proposed amendment is palpably devoid of merit or would cause undue prejudice (McGhee v Odell, 96 AD3d 449, 450, 946 N.Y.S.2d 134 [1st Dept 2012]). While unexplained delay in  [**3]  seeking leave to amend can, in certain circumstances, warrant denial of the motion (see Barry v Clermont York Assoc., LLC, 144 A.D.3d 607, 608, 42 N.Y.S.3d 123 [1st Dept 2016]), it is settled that a party may amend its pleadings to conform to the proof at any time--even during or after trial--provided that there is no prejudice (Kirnso Apts. LLC v Gandhi, 24 NY3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014] [courts are afforded "the widest possible latitude" in allowing an amendment pursuant to CPLR 3025]).

Additionally, causes of action asserted in an amended complaint against a defendant who is already a party to the action, which would otherwise be time-barred, are deemed to "relate back" so long as the complaint "gave defendant notice of the transactions or [*3]  occurrences at issue" and there is no "undue prejudice" (O'Halloran v Metro. Transp. Auth., 154 AD3d 83, 87, 60 N.Y.S.3d 128 [1st Dept 2017]; CPLR 203[f]). An amendment that "merely adds a new theory of recovery. . . arising out of a transaction or occurrence already in litigation" is consistent with fairness concerns underlying CPLR 203(f) because "[a] party is likely to have collected and preserved available evidence relating to the entire transaction or occurrence and the defendant's sense of security has already been disturbed by the pending action" (Duffy v Horton Mem. Hosp., 66 NY2d 473, 477, 488 N.E.2d 820, 497 N.Y.S.2d 890 [1985]).

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2018 N.Y. Misc. LEXIS 3737 *; 2018 NY Slip Op 32141(U) **

 [**1]  LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ MONEY, INC., and PRESCRIPTION SONGS, LLC, Plaintiffs, -against- KESHA ROSE SEBERT p/k/a KESHA, Defendant. Index No.: 653118/2014


Subsequent History: Affirmed by Gottwald v. Sebert, 172 A.D.3d 445, 99 N.Y.S.3d 295, 2019 N.Y. App. Div. LEXIS 3461 (May 2, 2019)

Prior History: Gottwald v. Sebert, 2016 N.Y. Misc. LEXIS 348 (N.Y. Sup. Ct., Feb. 2, 2016)


campaign, allegations, defamation, raped, discovery, plaintiffs', defamatory, amend, amended complaint, purportedly, artist, notice, ruin, sham