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A writer who claims to have penned a screen treatment in the 1970s based on author Robert Ludlum’s “The Bourne Identity” can continue to pursue his lawsuit against the creators of the 2002 hit movie of the same title. Manhattan Supreme Court Justice Bernard Fried (See Profile), in Lazzarino v. Warner Bros. Entertainment, 602029/05, declined to dismiss the action in spite of strenuous arguments made by some defendants that the statute of limitations in the breach of contract case had expired. Explaining that statutes of limitations have been “an essential part of the Anglo-American legal system for centuries,” Justice Fried said he “could not conclude as a matter of law that the reasonable time for bringing this cause of action for breach of contract had expired when Plaintiff filed his complaint” in June 2005. Anthony Lazzarino entered into a joint venture with defendant Henry Morrison, Mr. Ludlum’s literary agent, and another individual, Elliot Blair, in 1980. Justice Fried said the parties, who named their company Windwood/Glen Productions, intended to “package and finance” a film of the book based jon a screenplay written by Mr. Lazzarino. After writing the treatment, Mr. Lazzarino successfully negotiated its sale to Orion Pictures. On July 24, 1981, Orion entered into four concurrent agreements. It bought “the motion picture and allied rights to ‘The Bourne Identity’ and Plaintiff Lazzarino’s ‘treatment of that book,’” the judge said. Actor Burt Reynolds was to play the lead role in the film. Under the 1981 agreement, if Orion later decided to sell its interest in the film, it promised to allow Windwood to “match the sales price.” Orion later went out of business, and Warner Bros. took over the 1981 contract. Mr. Lazzarino said that Warner breached the agreement entered into between Windwood and Orion by selling the rights to “The Bourne Identity” without offering his company the right to match the price. Mr. Lazzarino introduced a 1999 agreement between Mr. Ludlum and Universal, which provided that Universal could make a feature film version of “The Bourne Identity,” as well as two sequels. Defendants Warner Bros., Mr. Morrison and Mr. Ludlum’s estate brought a motion to dismiss the complaint, arguing that, under separate agreements entered into between Warner Bros. Television and Mr. Ludlum in 1987 and 1999, a TV mini-series was produced by Warner Bros., which gave up its rights to the film of Mr. Ludlum’s film. Universal released the film in 2002, and it grossed over $200 million. The film did not use Mr. Lazzarino’s treatment. Rather, the screenplay was credited to Tony Gilroy and William Blake Herron. Even if Mr. Lazzarino did have a legitimate claim for breach of contract, the defendants argued that the action had to be dismissed because the six-year statute of limitations had passed. Mr. Lazzarino, however, argued that Warner Bros., Mr. Morrison and Mr. Ludlum’s estate should be equitably estopped from pleading the statute of limitations argument because they deliberately “concealed” from him the existence of the agreements between Mr. Ludlum and Warner Bros. Television until this motion to dismiss was filed. Statute of limitations Justice Fried ultimately held that he could not as a matter of law rule that there was equitable estoppel or that the period of time that Mr. Lazzarino should have brought the action had passed. As a result, the judge gave Mr. Lazzarino, who is representing himself pro se, 30 days to file an amended complaint to add a cause for breach of implied covenant of good faith and fair dealing. Justice Fried also instructed the parties to begin conducting discovery. A preliminary conference to discuss a discovery schedule will be held later today. The defendants were represented by Marshall Beil, a partner at McGuire Woods; Mitchell Schuster and Thomas L. Friedman, partners at Meister Seelig & Fein; Yvonne Look, an in-house attorney at Time Warner; and Richard Dannay, a partner at Cowan, Liebowitz & Latman. “We don’t think [Mr. Lazzarino] has any claim, and we hope to establish this through discovery,” Mr. Beil said. Beth Bar can be reached at [email protected]

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