NYSCEF doc nos. 114-116 and 118-166 were read on this motion for an order of discontinuance.

Motion by plaintiff pursuant to CPLR 3217(b) for an order discontinuing the action with prejudice as asserted by plaintiff against defendants The Walt Disney Company and Miramax Film NY, LLC f/k/a Miramax Film Corp. granted.

Plaintiff has settled with defendants The Walt Disney Company and Miramax Film NY, [*2]LLC f/k/a Miramax Film Corp. (hereinafter Settling Defendants) and seeks to discontinue the action with prejudice as asserted by plaintiff against Settling Defendants. Plaintiff and Settling Defendants agreed to stipulate to discontinue the action with prejudice as asserted by plaintiff pursuant to CPLR 3217(a)(2), but the other defendants, Creative Arts Agency, LLC (hereinafter CAA) and Harvey Weinstein, did not agree to the stipulation. Plaintiff then filed this motion pursuant to CPLR 3217(b) for an order discontinuing the action with prejudice as asserted by plaintiff against Settling Defendants. CAA opposes, arguing, among other things, that any discontinuance would frustrate its cross claims. Settling Defendants support the motion.

CPLR 3217(b) provides, as is relevant here, that "an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper." Where an action is in early discovery, with third-party practice available, and absent prejudice to a substantial right or some other special circumstance, a plaintiff should be permitted to discontinue (see Shepherd v Workmen's Circle Multicare Ctr., 224 AD3d 485, 486 [1st Dept 2024]). Allowing a plaintiff's discontinuance against a defendant which has cross claims for common-law indemnification and contribution asserted against it is not prejudicial where those cross claims are converted into a third-party action (see Raquet v Braun, 681 NE2d 404, 406—407 [1997]; Franklin-Hood v 80th St., LLC, 138 AD3d 609, 609 [1st Dept 2016], citing Eddine v Federated Dept. Stores, Inc., 72 AD3d 487 [1st Dept 2010]; Muy v Robert Bosch Power Tool Corp., 80 AD3d 681, 681 [2d Dept 2011]). Here, CAA asserts cross claims for common-law indemnification and contribution against Settling Defendants (NYSCEF doc no. 63). To preserve those claims, the court will permit the discontinuance on the term that the claims are converted into a third-party action. Settling Defendants will remain in the action as third-party defendants and remain subject to the rules of this court and any discovery obligations.

Accordingly, it is

ORDERED that the motion is granted; and it is further

ORDERED that the action is discontinued with prejudice as asserted by plaintiff against defendants The Walt Disney Company and Miramax Film NY, LLC f/k/a Miramax Film Corp.; and it is further

ORDERED that the cross claims of defendant Creative Artists Agency, LLC are converted into a third-party action; and it is further

ORDERED that the pleadings as already filed in this action shall stand as the pleadings in the third-party action, no further pleadings or service on a party required; and it is further

ORDERED that the action shall bear the following caption ^[FN1] :

ORDERED that, within five days of entry, plaintiff shall serve a copy of this order with notice of entry on defendants and, pursuant to the filing rules and requirements of each respective office, on the general clerk's office, and on the county clerk's office, which offices shall amend their records to reflect the change in caption; and it is further

ORDERED that all parties shall appear in Part 23 on Wednesday, July 30, 2025, at 12:00 p.m., for a status conference.

The foregoing constitutes the decision and order of the court.