Opinion
15733 Index No. 653118/14 Case No. 2021–04391
04-14-2022
Lukasz GOTTWALD professionally known as Dr. Luke, Kasz Money, Inc., et al., Plaintiff–Respondents–Appellants, v. Kesha Rose SEBERT professionally known as Kesha, Defendant–Appellant–Respondent.
O'Melveny & Myers LLP, New York (Anton Metlitsky of counsel), for appellant-respondent. Mitchell Silberberg & Knupp LLP, New York (Jeffrey M. Movit of counsel), for respondents-appellants.
O'Melveny & Myers LLP, New York (Anton Metlitsky of counsel), for appellant-respondent.
Mitchell Silberberg & Knupp LLP, New York (Jeffrey M. Movit of counsel), for respondents-appellants.
Acosta, P.J., Kern, Gonza´lez, Shulman, JJ.
Order, Supreme Court, New York County (Jennifer Schecter, J.), entered October 27, 2021, which, to the extent appealed from, upon the parties’ cross motions, precluded defendant from offering a certain document at trial and precluded plaintiffs from introducing testimony by a certain witness at trial, unanimously affirmed, with costs.
The court providently exercised its discretion in precluding the privileged communication that defendants sought to introduce after four years of extensive discovery and two years after discovery had closed. A showing of willful and contumacious behavior was not required (see Metropolitan Bridge & Scaffolds Corp. v. New York City Hous. Auth., 168 A.D.3d 569, 572, 92 N.Y.S.3d 248 [1st Dept. 2019] ; Vandashield Ltd v. Isaacson, 146 A.D.3d 552, 556, 46 N.Y.S.3d 18 [1st Dept. 2017] ), and the preclusion is not "disproportionate" to defendant's discovery malfeasance (see Beach v. Touradji Capital Mgt., LP, 179 A.D.3d 474, 477, 117 N.Y.S.3d 36 [1st Dept. 2020] ). Further, the belated disclosure would prejudice plaintiffs. Had such selective disclosure been timely made, plaintiffs could have altered their litigation strategy and expanded the scope of discovery based on defendant's waiver of the attorney-client privilege (see Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 577 N.Y.S.2d 841 [1st Dept. 1992] ).
In view of the foregoing, we need not reach the parties’ remaining arguments for affirmative relief. As plaintiffs appealed solely to preserve their challenge to the preclusion of their witness in the event this Court reversed the ruling appealed by defendant, we also affirm the preclusion of the trial witness.