Commercial Division Blog

Posted: September 14, 2018 / Categories Commercial, Court Rules/Procedures

Plaintiff Allowed to Amend Complaint in Anticipation of Trial

On August 31, 2018, Justice Schecter of the New York Country Commercial Division issued a decision on Gottwald v. Sebert, 2018 NY Slip Op. 32141(U), allowing a plaintiff to amend his complaint in anticipation of trial, explaining:

Kesha moves to strike the Amended BOP, urging that plaintiffs are improperly seeking to enormously expand the case years after it was commenced. Plaintiffs oppose the motion and cross-move for leave to serve a proposed third amended complaint 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, plaintiffs' cross motion is granted and Kesha's motion is denied.

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. While unexplained delay in seeking leave to amend can, in certain circumstances, warrant denial of the motion, 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.

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 occurrences at issue and there is no undue prejudice. 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.

Though defamation has a one-year statute of limitations and must be pleaded with particularity, the relation-back doctrine authorizes amendments that provide more specifics so long as they relate to the transactions on which the original defamation claim was based.

Here, it could not be clearer that the proposed new allegations merely expand on those already contained in the operative pleading. Significantly, the proposed amendments in no way change the theory of the case.

(Internal quotations and citations omitted).

In New York, the courts are very generous in allowing a party to amend its pleadings. However, there are limits to this generosity. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding whether it is too late to amend your claims or answer.