March 6, 2015 decision

INDEX NO. 158209/2014
FILED: NEW YORK COUNTY CLERK 03/20/2015 03:04 PM
NYSCEF DOC. NO. 33
RECEIVED NYSCEF: 03/20/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
<A
JESSIE NIZEWITZ,
Index No. 158209/2014
Plaintiff,
Assigned Judge: Hon. Ani] C. Singh
-against-
NOTICE OF ENTRY
VIA COM INTERNATIONAL, INC.,
FIRELIGHT ENTERTAINMENT, INC., and
LIGHTHEARTED ENTERTAINMENT, INC.,
X
Defendants.
PLEASE TAKE NOTICE that the annexed is a true copy of the Decision and Order
entered by this Court on March 4, 2015, at the Supreme Court ofthe State ofNew York, County
ofNew York Courthouse, 60 Centre Street, New York, New York 10007. In addition, please
take notice that the annexed is a true copy of the transcript of proceedings before the Honorable
Anil C. Singh on March 4, 2015, at the Supreme Court of the State ofNew York, County ofNew
York Courthouse, 60 Centre Street, New York, New York 10007, including the Court's Decision
and Order to dismiss Plaintiff's complaint with prejudice and granting Defendants' application
under the appearance release to set the matter down for a hearing before a special referee to hear
and report the attorney's fees and costs incurred based on Plaintiff's commencement of this suit
in violation of the release.
Dated.
LLP
By:
Elizabeth A. McNamara
Davis Wright Tremaine LLP
1633 Broadway 2ih Floor
New York, New York 10019
Tel: (212) 489-8230
Fax: (212) 489-8340
Attorneysfor Viacom International, Inc,
TO:
LEVINE & BLIT, PLLC
Matthew J. Blit
350 Fifth Avenue Suite 3601
New York, New York 10118
Tel: (212) 967-3000
Attorneysfor PlaintiffJessie Nizewitz
FRANKFURT KURNIT KLEIN & SELZ PC
Edward H. Rosenthal
Anna Kadyshevich
488 Madison A venue
New York, New York 10022
Tel: (212) 826-5524
Attorneys for Defendants Firelight Entertainment, Inc.
and Lighthearted Entertainment, Inc.
2
(FILED: NEW YORK COUNTY CLERK 03/06/2015 03:08 PMJ
INDEX NO. 158209/2014
RECEIVED NYSCEF: 03/06/2015
NYSCEF DOC. NO. 32
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
H'ON. AND... C. SINGH
SUPltEME COURT nnrm:E
PART
PRESENT:
(.Q
I
_r
Index Number: 158209/2014
NIZEWITZ, JESSIE
INDEX N O . - - - - -
VS
MOTION D A T E - - - - -
VIACOM INTERNATIONAL, INC.
MOTION SEQ. N O . - - -
Sequence Number : 001
DISMISS ACTION
The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - No(s). _ _ _ _ __
Notice of Motion/Order to Show Cause- Affidavits- Exhibits
Answering Affidavits- E x h i b i t s - - - - - - - - - - - - - - - - - -
I
I No(s). - - - - - -
Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - -
1No(s). - - - - - -
Upon the foregoing papers, it is ordered that this motion is
w \. \-1.- -tN CJ.J G\ ::> (
+~z
)
V'-
k
~
~
{/\_
)-.
~
t:?- 1€
q_c_ ~A"'-" q
'--~
<}-
f-
~:zJ:~.._.
w
(.)
i=
C/)
...,
::I
0
10
w
Q::
Q::
w
w
u.
Q::
~§:
...1
::I
u.
z
0
(f)
1- <t
(.) w
w a:
fr;(.!)
w z
Q:: (/) 3:
-
0
w
...1
..J
(/)
<t 0
u u..
z
0
~
1-
i= a:
0 0
:!!: u..
Dated:
3 \ '--"-l \ ~
,J.S.C.
1. CHECK ONE:
JQ CASE DISPOSED
2. CHECK AS APPROPRIATE: ........................... MOTION IS:
)~iGRANTED
3. CHECK IF APPROPRIATE:
SETTLE ORDER
DO NOT POST
-;:I il::.t>:Ef.1E COURT J"Jn'TCE
NON-FINAL DISPOSITION
DENIED
OTHER
GRANTED IN PART
SUBMIT ORDER
FIDUCIARY APPOINTMENT
REFERENCE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PART 61
---------------------------------------------- ----x
JESSIE NIZEWITZ,
Plaintiff,
Index No.
158209-14
-againstVIACOM INTERNATIONAL, INC., FIRELIGHT
ENTERTAINMENT, INC., and LIGHTHEARTED
ENTERTAINMENT, INC.,
Defendants.
------------------------------- ------------- -
---x
March 4, 2015
80 Centre Street
New York, New York
HON. ANIL C.
BEFORE:
SINGH
Supreme Court Justice
APPEARANCES:
Attorney for Plaintiff
LEVINE & BLIT, PLLC
350 Empire State Building
New York, New York 10116
BY:
Matthew Blit, Esq.
Justin S. Clark, Esq.
Attorney For Defendant
DAVIS WRIGHT TREMAINE LLP
1633 Broadway, 27th floor
New York, New York 10019
BY:
Elizabeth A. McNamara,
ELINE GLASS
Senior Court Reporter
Esq.
2
Proceedings
1
THE COURT:
2
3
Viacom International Inc. moves pursuant to CPL
4
3211 (a) (1)
5
Nizewitz's complaint with prejudice and for
6
attorney's fees and costs.
3211 (a) (7)
to dismiss plaintiffs Jessi
In motion sequence 002,
7
defendants
8
Lighthearted Sntertainment Inc.
9
Entertainment move in essence for the same relief.
and Firelight
10
The motions are consolidated for decision.
11
Plaintiff Jessie Nizewitz opposes both motions.
12
So I'll mere first from Viacom.
MS. McNAMARA:
13
i
In motion sequence 001
Thank you very much,
your
14
Honor.
15
somewhat unusual,
16
Dating Naked.
17
undisputed agreement at issue in this case are
18
well established and we submit dictates but one
19
result which is the dismissal of the action.
0
While the context of this case might be
p aintiff does
it's a reality show called
The law is applied to the
't d spute sh
ente
e
t
d
The
to thre
v
a
h
based upon
gr ss ne 1 ge ce
e e
e
is essentia ly not valid because New York doesn't
cogniz
r
e
no
e
a part
to
e
e
3
Proceedings
1
2
itself from gross negligence?
MS. McNAMARA:
3
i
Your Honor,
there are
4
certain circumstances where the courts have
5
refused to enforce releases wten the claims are
6
for gross negligence or intentional tort.
7
first of all let me say here there really can't bel
8
claims of gross negligence or intentional tort
9
when what is being complained of complied with th
But
10
express terms of the agreement.
But with regard
11
to the basic issue of whether exculpatory release
12
can be applied where there are asserted claims
13
even if unfounded we would argue,
14
claims for gross negligence and intentional
15
affliction,
16
every single case that has looked at releases in
17
connection with the entertainment industry or the
18
photo industry even when in all of those cases
19
there were claims for intentional tort and or
20
gross negligence,
but asserted
the law could not be more clear.
the courts have un f
In
rm y
a
he
0
a
f
g
ss
e
g
e
n ent onal
r
are in circumstances where they're involving
26
bus
esses ope
th
pub
v
g
cmmo
4
Proceedings
2
carriers,
involving claims of pGblic utilities,
3
there is simply and I
4
Honor,
5
state of New York that protects would be reality
6
stars from embarrassment.
7
public policies that is at issue in the case law
8
that is reticent in certain circumstances to
9
enforce releases.
say this respectfully,
your
but there is simply no public policy of th
As I
That's not the type of
said before,
with regard
i
10
to this area of law the cases have been uniform iniI
11
New York and they have not cited a single case to
12
the contrary.
13
Crumpler case versus NBC.
14
signed a release.
15
bathing suit.
16
release that allowed the photographs to be used ini
17
any and all circumstances.
18
photographer licenses the photo to NBC.
I
cite but one example.
Take the
There the plaintiff ha
She was photographed in a
She signed a release,
a full signed!
i
i
9
20
I
Years later the
NBC used
the photograph in what she considered to be a
degrad ng and humil ating scene where a character
ot
a
d
te r
f
2
me it and
not
more
de
r
he same ho ds here.
He
ear.
lease
he
errns of
a m
h ut
releases could
e
o
a
5
Proceedings
1
!
2
could not be more express.
The terms of the
3
contract make it crystal clear that not on y was
4
she going to be filmed entirely in the nude in
5
front of cast and crew, but that they had the full,
6
right to publish and disseminate her
7
participation.
8
the definition of participation is the filming of
9
her in the nude.
And if you look at the agreements
The contracts even go on so far
10
as to provide that they can be,
the film can be
11
edited in a way even if it's humiliating or
12
disparaging to her also implies that they have th
13
sole discretion to determine how the show is to bei
14
published.
15
consistent with the fact that they had the
16
discretion and the unilateral right to publish the
17
show as they saw fit.
18
and fleety moment of non blurring,
f
Every provision of this agreement was
And that this inadvertant
clearly while
it was not the desires of everybody because it's
he practice of
1 to b ur
ese.
COURT·
i
MS. McNAMARA:
25
26
b
s
es
0
wh
the
They have al
d
r
sort of
u
6
Proceedings
1
2
did not have a contractual obligation to do the
3
blurring.
4
this.
That's where her claims butt heads on
And I
5
say,
if you look at any of this you
6
have the Brook Shields'
case,
the court of
7
appeals,
8
away nude photos of her when she's 10 years old
9
and when she's an adult she's troubled by the
report Brook Shields her mother signs
10
dissemination of these nude photos.
11
unequivocal releases.
12
those releases.
13
some level sympathetic to the plaintiff,
14
fact of the matter is the courts hold you to the
15
strict terms of your contract and case after case
16
the Klapper decision every case that's looked at
17
reality shows has found consistently that these
18
contracts are to be upheld.
The court of appeals uphel
These are circumstances all on
but the
Briefly with regard to her oral contracts and,
19
20
Those were
'm going to let Mr.
Ro e
hal focus on that
1
2
4
I
1
t
25
26
us
bas
a
a
f
she was oromised orally that there would be
lu r
g
-----------------------·····-----------·········---------·-- ---
--------
7
Proceedings
1
THE COURT:
2
3
consistency.
4
blurred.
But there is some
Most or all of it essentially is
5
MS.
McNAMARA:
6
THE COURT:
There is no question.
So probably and on the
7
motion I have to assume the truth of that.
8
Probably she was told not to worry,
MS.
9
10
McNAMARA:
THE COURT:
Even I
correct?
never heard
have to assume that
I
11
getting beyond that in this case based on the fact
12
that everything was blurred except for one second i
13
or so or less,
14
she was told that it was going to be blurred?
15
couldn't I
MS. McNAMARA:
assume that in fact tha
think since she pleads
I
16
it,
17
purposes of this motion you have to accept that
18
pleading as accurate,
19
distinction here and the important dist nction is
20
whet er she was t
your Honor is correct to state that for
mer
s
ld t
0
the merger provision t
pro vi
a
but I
a
think that the key
or not does not rna e
o e
ct
n
e contract expressly
s e a knowle
ed
h
wa n'
8
Proceedings
1
2
anything and she wasn't relying on anything.
3
wasn't relying on a promise to enter into the
4
contract.
5
there.
6
executed this contract,
7
clearly.
8
and that is signed by the parties.
9
produced any and there is none.
She
So that will knock out oral contracts
And then if this promise is made after sh
the contract again speak
She has to have a commitment in writing
She's not
And the claims
10
are precluded there.
11
run around these clear basic contractual
12
provisions by arguing that this was an independent
13
contract.
14
addressed or anticipated in the contract.
15
contract is about nothing if not the fact that you:
16
are going to be filmed in the nude and there is
17
going to be a publication called Dating Naked
18
where people are going to be portrayed in the
19
nude.
It was dealing with something not
But the!
That's the subject of the contract.
So you
20
And she tries to do an end
an't p ausible,
I
ubmi
your Ho o ,
t
e
4
ear
th s area,
ur
r .
ha
2
has looked at similar circumstances even when the
2
plai
i
fs had
laimed some hin
e
d dn'
I
9
Proceedings
1
2
anticipate,
something that was embarrassing,
3
something that they believed to be degrading in
4
each and every case,
5
uniformly held up,
6
and held plaintiffs to the bargain that they made
7
and the contractual provisions that they entered
8
into.
9
here.
the courts of New York had
held the terms of the contract '
And we asked this court to do the same
And further with the contract we asked the
10
11
court to award attorney's fees.
We made it clear
12
to the plaintiff before when the action was first
13
brought to us even before it was filed we spelled
14
this all out clearly to them as to why we didn't
15
think there was any merit whatsoever.
16
them notice of all the case law.
17
prior,
18
ruling there and they choose to proceed.
19
think that again they should be held to the terms
20
of their contact and award atto ney's fees.
i
We gave
I
you know,
We explained ouri
cases for VH1 with Klapper,
the
And we
d
2
4
25
6
L______ -
3
)
'
I
\
d
0
0
r.
h
r
licity claim for use that
o f
es of
r de and adver is
y i
t
s not within the
That'
a
10
Proceedings
1
2
miracle in State of New York.
3
a claim of gross negligence that is merely a weak
4
statement of their oral contract claims.
Finally,
5
Nor can they state
they have not begun to allege the
6
type of outrageousness that's required under the
7
clear case law in New York for an intentional
8
infliction of emotional distress claim.
For these independent reasons,
9
your Honor,
10
several of which we ask the court to dismiss the
11
claim and award us attorney's fees.
THE COURT:
12
13
been touched.
14
MR.
Briefly address what's not
ROSENTHAL:
I want to refer the
15
court to the specific language of the agreement
16
where the plaintiff agreed that the agreement she
17
signed was a participant agreement,
which was
"the complete and binding Agreement of the
parties,
superseding all prior understandings and
communicati
e
s,
express or
lied,
oral or
,
h
by
1 pa
i
s hereto.
Plaintiff's complaint alleges that she was
to d she wou d be b urred before she ent
e
t
11
Proceedi:1gs
1
Assuming as your Honor
2
any of these agreements.
3
suggests that that was true,
the subject
matte~
ofi
I
I
I
4
her three agreements that she signed goes ri
t
to:
5
the heart of the nature of her performance on the I
6
show and her agreements to allow her to be filmed,
7
to be exhibited and distributed,
8
acknowledgement she might be embarrassed or
9
humiliated,
her
her agreement that she would not brin
10
any claims against either Viacom or the producers
11
for any violation of any of the rights that she's
12
asserted here precluded her claim and her idea
13
that there is some sort of a separate and
14
completely separate oral agreement separate and
15
apart from the three documents she signed that
16
goes right to this issue of how she's going to be
17
filmed and how she's going to be portrayed makes
18
no sense and can't possibly stand.
19
law general obligations
20
of
4
ollateral argument.
0
a
eement.
As a matter o
aw 15-301 bars that kind
here are one case
w
e
ag
25
was setting up a LLC to dispose of certain
26
p ope t
As t
n s de
ed
he L
ou dn'
nt
12
Proceedings
1
2
operate that way.
3
distributed that way,
4
dealing with how certain property was going to be
5
distributed that may have been the kind of case
6
where the new activities is completely unrelated
7
to the agreement, but here this alleged blurring
8
argument is right in the course of the agreement
9
reached.
The property couldn't be
10
THE COURT:
11
MR.
12
i 13
BLIT:
so there was a new agreement
Okay thank you.
Thank you,
Counsel.
your Honor.
What
we have here is a lot of allegations of contracts
are clear,
the laws are clear
THE COURT:
14
But aren't the contracts
15
clear?
Didn't she sign one contract,
22 page
16
contract she initialed every page.
17
every page.
18
releasing claims that she's going to be filmed
She signed
Doesn't it say in bold that she's
nude or partially nude?
MH.
l
4
25
26
pr
em
BLIT
Fi st
I
d n't th nk a law
d
h
s
c
t
is
dust
You have Viacom
cou
T a
's
s
0
o::
te.
13
Proceedings
1
2
That's not what I
3
taste of the show,
MR.
4
is the
or taste of television.
BLIT:
The epidemic really is the
5
abuse of the general public by these reality T.V.
6
shows.
THE COURT:
7
I
am adjudicating tere,
Let's start with that.
How
8
is your client abused here where she fills out an
9
application.
She solicits wanting to be on
I
~he
10
show where as I
11
application that sounds great to be on an island
12
or wherever it was on a beach front
13
Where is the abuse there?
recall she says in your
14
MR. BLIT:
15
before an infinite,
16
not the general public,
17
not the world.
in the tropic.
A private island being filmed!
a certain amount of people,
not the entire country,
I
18
THE COURT:
What does she think is going!
I
19
to happen to the film?
20
MR.
BLI
I
I
Good quest on.
Her
w
4
25
26
t
an
e vie
r
is
o
g i
e ab
o s e
hing.
In fa
you will be ab e to se
s
h
i
14
1
Proceedings
2
you were in a bathing suit,
3
in a bikini.
THE COURT:
4
less than if you were
Couldn't she have negotiate
5
an agreement that says well I want to be in a
6
bathing suit not nude?
MR.
7
8
I don't think there is any
negotiation abilities on behalf of any -THE COURT:
9
10
BLIT:
She either is filmed in the
nude partially nude or she doesn't do it.
11
MR.
BLIT:
Correct.
She did not oppose
12
being filmed in the nude.
13
to that.
14
Viacom be able to take all the videos of all the
15
contestant and turn it into regular porn and take
16
out all the blurring?
But where do we end this?
17
THE COURT:
18
MR.
19
There is no objection
the line here.
BLIT:
I
Will now
think they will say yes.
Tha~'s
where we have to draw'
All these reality shows whether
this one or -w
th
0
t
h
seem to say it's novel,
nove
It's t
e o dest
0
but sex sellin.g is not
de a
he
15
Proceedings
1
2
way.
MR. BLIT:
3
The point here is that
4
everybody had a reasonable expectation what was
5
going to be done and what wasn't going to be done.
THE COORT:
6
7
reasonable expectation of privacy?
MR. BLIT:
8
9
Yes,
Specifically i t ' s VHl.
10
Spice channel,
11
on
Playboy T.V.
Why wouldn't she?
She's signing up to be
If she knew it was on
that would be different?
MR. BLIT:
14
yes.
She's not signing up with
Playboy.
THE COORT:
12
13
Does your client have a
I think it would be
15
different.
There is an understanding if you are
16
on Playboy T.V.
17
If you're on VHl nothing is going to be shown.
18
Nobody watches VHl expecting to see what they saw.
19
That's why it went viral.
20
see what they seen on VHl.
everything is going to be shown.
You're not supposed to :
Why did
t
0
happen this
1
d h
art
Bef
e this
ce e wa
actuall
me ,
h
asked her to do this specific scene and asked
26
to
sit
erse f
i
wr st ing pos
fo
t
s
16
Proceedings
1
2
specific scene.
So yes our belief it was
3
intentional.
wasn't negligence.
4
purposeful, but what else is there?
THE COURT:
5
wasn't
t:
Under the agreement they
6
could have filmed her nude and distributed her
7
nude as well.
8
signed.
Under the various agreements she
MR. BLIT:
9
!
I~
Unfortunately based upon the
10
agreements that were signed the problem here is
11
that the agreements are overreaching.
12
agreement is in violation of public policy and
13
should be in violation of public policy.
14
are not actors or actresses with reputations.
15
These are general public the courts have to
16
protect.
THE COURT:
17
The
These
What about counsel's point
18
there is a line of cases going back to the
19
unfortunate case involving Brook Shields where
20
pictures of a minor a e shown whi h is
el
ho
e a t
s
MR. BLIT:
26
t
o make
r
mo
t
mi
rele
i
It wouldn't be the fi st
a ke.
Bu
he
sue
17
1
Proceedings
2
case has not really been addressed by the
3
Appellate Division.
4
certain Supreme Court cases and a Federal court
5
case.
6
opportunity to prevent the continued epidemic of
7
abusing the general public without the knowledge
8
that lawyers have,
9
actors have the ability to have the type of
It's only been addressed by
It's not settled law and there is the
without the knowledge that
10
lawyers
11
taken advantage of one by one by one.
12
has to be some barrier put up to protect the
13
general public,
to protect people that go on thes
14
reality shows.
It's one thing if -
15
lawyers fall victim to other lawyers.
16
the general public.
17
course everyone wants to be on T.V.
18
15 minutes of fame.
~hat
actors have.
And they are being
And there
how many
Think abouti
They want to get on T.V.
Of
Everyone wantsl
They are in such a low
bargaining position or a low position of no power
and no protect o
ous
ffe e t
THE COURT:
25
26
u
la
he
he e
there.
ns
And t
s
e
e e
e
That's not your claim.
s a sec
sion
o
less,
'm
Your
18
Proceedings
1
2
sure how much time.
3
t
4
the claim.
me where her genitalia was exposed of.
5
MR.
6
THE COURT:
7
BLIT:
That's
Correct.
Nothing to do with food or
medicine.
MR.
8
9
IL's a very shorL period of
BLIT:
Yes,
yes.
I'm giving you
just the understanding of why there is a need for
Why there is a need to set this precedent.
10
this.
11
Why there is a need to rule in this direction.
12
It's not settled against -- it's not against the
13
case law
14
THE COURT:
How does this agreement
15
violate public policy,
16
in the nude or something else?
17
MR.
BLIT:
the fact that she's filmed
There is no question that she!
knew she was going to be filmed in the nude.
She
didn't have any objection to being filmed in the
ude.
I
world t
d
h
e
at it would be exploited by the
nda ts.
n
e
19
Proceedings
1
THE COURT:
2
She thought she was going t
3
be filmed and not exploited.
4
exploitation in the way you're thinking.
5
in terms of -MR.
6
BLIT:
I don't mean
I mean
The use of the video the way
7
the show was taped,
of course she had an
8
understanding that it was going to be displayed to
9
the world just the way it was blurry,
10
unblurred.
11
they sold to her.
12
her over and over again.
13
to try to escape gross negligence --
That's what
That's what they explained to
THE COURT:
14
15
That's the expectation.
not
And to use the contract
And what's the gross
negligence?
MR.
' 16
BLIT:
for ratings,
I
Putting this clip on national:
I
17
T.V.
18
boast ratings of the show at my client's expense.
to sell,
THE COURT:
19
20
1
to sell the show,
to
Isn't that as counsel notes
in her argument there is really no difference
e
0
0
h
0
b
0
r her pr va e parts a
second or so it was not done.
breach of con ract.
a
And
hat's the
That's the gross negl
enc
20
Proceedings
1
2
I
sn't that?
3
MR. BLIT:
It's separate duty.
4
THE COURT:
5
MR. BLIT:
6
THE COURT:
7
MR. BLIT:
8
it was intentional.
9
this pose specifically for this moment.
Separate agreement.
Separate duty.
What's the independent duty?
Okay.
The difference is that!
They specifically had her do
10
weeks to edit this.
11
the different shows that are on there.
12
wasn't a slip.
THE COURT:
13
14
contract,
They had weeks to edit all of
This
So that would be breach of
right?
MR.
15
They had
BLIT:
Breach of contract,
gross
16
negligence.
17
contract -- there is general obligations laws that!
18
prevent you from contracting out your own
19
negligence for parties with
20
And the other point is that the
-
ndus ry for example where yo
e
in the construction!
have -t
n
BLI
ou se
the
25
standard that you can t
contract o t
26
ge er
d
en e s
PP
your own
0.
1
21
1
Proceedings
2
THE COURT:
3
MR.
4
Thank you,
BLIT:
Okay.
Anything else?
One second,
your Honor.
your Honor.
5
THE COURT:
6
MS.
Counsel briefly.
McNAMARA:
If I
may,
your Honor,
I
7
want to make a couple of points.
8
plaintiff's counsel indicated that really what was
9
at issue here was the plaintiff's reasonable
One,
the
10
expectation of privacy.
11
underscore here that in the State of New York
12
there is no claim of privacy.
13
that exists in the State of New York is the
14
privacy awarded by Section 50-51 and with regard
15
to trade and advertise commercial use of
16
exploitation.
17
and the agreement could not be more clear,
And I
just want you to
The only pr vacy
i
8
19
0
And here in her agreement she fully'
she may be disparaged,
are embarrassing,
and my fami y to
wh
25
2
h
that things may happen that 1
unfavorable,
that may expose me
ic rid c le,
t
ined it
1 ation,
h
l
w
g
e
21 of the part cipation agreement
r
ust says
that
n bold and
he following·
1
22
Proceedings
1
Producer shall have the right to film and or
2
3
record me nude,
partially nude,
4
broadcast,
5
exploit such recordings and the project."
distribute,
and otherwise
One of our counsels point
THE COURT:
6
exhibit,
or otherwise.
7
that time has come out to put an end to the
8
exploitation as he uses the word,
9
the word,
not as you use
to these kind of agreements on reality
10
T.V.
where the general public contestants on these
11
shows is taken advantage of by your client.
MR.
12
ROSENTHAL:
A couple of comments to
This was a choice by her.
People like the
13
that.
14
plaintiff here often are clambering to be on this
15
show.
16
many in this court would not have made the same
17
choice,
18
clearly spelled out to her what she was getting
19
into.
20
Klapper cour
She chose to do it.
I have a suspicion
but this was her choice.
And it was
Everybody understand as it was said in the
by
he j
e there
this
t
at
hat
s an
t
ol s
stepped in and invoked public policy as I've
2
i
ate
be o e w
w
re t
er
s
h n
23
1
Proceedings
2
involving the concern of the
3
citizens generally where businesses are open to
4
the public and individuals don't have a choice but
5
to use those businesses,
6
public utilities.
7
this state that I'm aware of where individual who
8
make an informed choice where the facts are
9
spelled out to them that they chose to subject
10
s~ate
to protect the
or common carriers,
or
There has been no precedent
n
themselves to the vagaries of reality television.
The other point I want to make,
11
it's a critical one.
your Honor,
To rule in favor of the
13
plaintiff here would literally upend the
14
entertainment and photography industry.
15
on these releases.
16
contestant who goes on a show whether it be a game
17
show in the Feldman case,
18
Klapper case,
19
contestant could after the fact say,
20
what,
If they could not,
if every
or the mob wives in the
or myriad of other shows,
as promised I
I
They rely
if every
you know
s~ar.
was goi g to be
I
ou
i
25
6
photogra
og
e ph
ap
du
r
s are taken on a daily basis.
hey are d ssemi ated
or
r
Thousands
a
s
24
Proceedings
2
after that in reliance on releases entered into
3
when those
4
photographer and there licensee to use those
5
photographs in myriad other ways many of which
6
would never have been anticipated argue at the
7
time the release was entered into.
8
industry that is in place.
9
rule those releases would be vitiated because
pho~ographs
are taken that allow the
That is the
Were this court to
10
there is protection for would be reality stars,
11
would upend an entire industry.
12
of Appeals has made anything clear in case after
13
case after case,
14
New York is the
15
most of the news world,
16
very protective of its industry as it should be.
17
And these are the rights.
18
amendment rights which come with that and some of
19
have come with some costs and some baggage.
20
i~
si~e
And if the Court
recognizes that the State of
of most of the media world,
and it is a state that is
These are the first
And that's the nature of the first amendment but
y
1
4
' 25
26
IvJR.
f
THE COURT:
Very briefly.
BL T:
i
rna
'm sure
a
ay
0
25
Proceedings
1
2
going to change what you have on that paper that
3
you are about to read.
4
saying is that the interest of their clients
5
outweighs.
6
grossly negligent and destroy people's lives for
7
the benefit of reality television.
9
They should be able to be negl gent,
THE COURT:
8
Essentially what they are
I think the question what
resinates with me is the issue of choice.
If your
10
client had no choice in the matter,
11
stronger argument.
12
She wanted to participate in this reality T.V.
13
show.
14
MR.
a reality T.V.
16
blurred.
17
But your client had a choice.
BLIT:
15
that may be a
She wanted to participate in
show where she was going to be
THE COURT:
Where she appeared naked.
18
Except there is nothing in the agreement,
19
have to concede this because you don't allege it,
20
25
26
hat even says anything close
o the fact
a
n s
i
f
T
and you
hat sh
a
to appear nude.
MR.
BLI
N t
in
th
agr erne t
tha
26
Proceedings
1
2
says it.
THE COURT:
3
Assuming for
the purposes of
4
the CPLR 321(a) (7)
motion the truth of the
5
allegations of the complaint and giving plaintiff
6
as the non moving party every favorable inference,
7
the plaintiff alleges that in March of 2014,
8
submitted an application to audition for a reality:
9
dating television show.
she
Plaintiff was advised by
1J
the casting agents that she had been selected for
11
a skype interview.
12
plaintiff was told by the casting agents that the
13
show would be a nude dating show.
14
she was promised that all of her frontal and
15
genital nudity would be blurred from the
16
broadcast.
17
selected to appear on the show "Dating Naked."
18
Plaintiff agreed to appear on the show,
19
plaintiff alleges that she did not consent to the
20
broadcast of her fronta
In the skype interview
However,
that
In April of 2014 plaintiff was
nudity
r
however,
her genitals.
M
me
n
udit
4
woul
b
25
broadcast on VHl.
26
1
ati
1
in Pa ama.
r
ed
e
h
sh
a
Filming took place on a beach
Pla ntiff
11 g s
hat dur
i
2
Proceedings
1
2
the filming she was strongly encouraged to perfo
3
a wrestling maneuver on her date.
4
perform this maneuver after she was assured again
5
that all frontal and genital nudity would be
6
digitally blurred from the broadcast.
7
receiving these assurances plaintiff agreed to
8
perform the maneuver.
9
On July 31,
2014,
She agreed to
1
After
the third episode of the
10
show where plaintiff appears as a contestant was
11
broadcast on VHl.
12
plaintiff's wrestling in a maneuver the defendants
13
failed to blur her genital area which was exposed :
14
to all the viewers.
15
the showing she was shocked and horrified and
16
outraged by this intrusion into her privacy and
17
since the showing of the episode she has suffered
18
from severe emotional distress,
19
humiliation,
20
uncensored episode and uncensored pictures were
l
In the episode during
Plaintiff states that after
embarrassment.
mental anguish,
Further,
that the
a
e
2
2
26
a
be
p ess
ed
p
ha
nudity wou d be blurred when broadcast.
ause of a t
n asserted f
al
d
e
The firsti
he de enda ts
28
roceedings
1
2
for breach of an oral contract.
Plaintiff alleges
3
that the defendants through their agents entered
4
into an oral agreement where defendants agreed to
5
blur any frontal or genital nudity when the show
6
was broadcast.
7
agreement she consented to use of her image for
8
commercial exploitation.
And that based on defendants
9
Plaintiff further alleges that she relied on
10
the promise by defendants and that the defendants
11
breached in agreement by permitting the uncensoredf
12
image of her genitals to be broadcast during the
13
third episode of "Dating Naked."
I
14
The second cause of action is for the
15
invasion of right to publicity in violation cf
16
N.Y. Civil Rights violation Section 51.
17
18
The third cause of action is for intentional
infliction of emotional distress.
19
20
The fourth cause of action is for gross
negligence.
Here plaintiff a
eges that
d
ree
s
y b
a
ng
b
u
he
g
ta
2
area when they broadcast the show featuring the
26
plaint ff.
The show plaint f
aud
d
s
29
Proceedings
1
2
entitled "Dating Naked" which was broadcast on the'
3
VHl network which is owned by Viacom.
According to Viacom the programs was a twist
4
5
on the dating show formula.
6
nude and the reason for this was this removed
7
barriers which were imposed by clothing,
8
the daters would be more open to interact honest y
9
with their partners if they were in the nude.
and that
10
As :
11
is hardly new,
12
old theme that sex sells.
13
dismiss in the first instance that plaintiff has
14
signed three complete and unambiguous agreements
5
stated earlier,
It took place in the
in my view this formula
but rather a variation of an age
Defendants move to
which expressly permit that she will be filmed in
16
the nude or partially nude.
17
referenced by plaintiff in her complaint is dated
18
March 23,
19
dating show.
20
expresses her interest
2014,
The March application
and does state for an untitled
In the application the pla ntiff
c
n spending a week in a
t
0
l
d
2
25
2
p
f
The release states in relevant part in
pa agraph o e qu te,
"I'm
i
h s
re ease i
30
1
Proceedings
2
consideration of and an inducement to company
3
allowing me to partie pate in the participant
4
selection process and poss bly as a participant inl
5
the programming,
6
discretion,
7
will possibly receive as a participant in the
8
programming.
9
this release is a condition of the company
in the company's sole,
absolute
and in consideration of the benefits I
I
recognize that my signature on
10
permitting me to participate in the participant
11
selection process and possibly be a participant in1
12
the programming in the company's sole,
13
absolute discretion.
14
make audio and videotaped recordings,
15
without limitation,
16
including without limitation of me partially or
17
fully nude."
18
I
and
agree that the company may1
including
taking photographs of me,
The phrase including without limitation of
19
partially or fully nude is in bold and underlined.:
20
In the appearance re ease pla nt f f acknowle
es
b
2
a
ep
ag e
at
n
the selection process and programming freely and
t
r
y a
ha
he as
s
31
Proceedings
1
2
Further,
the agreement provides that the
3
defendants have the right to exploit her
4
participation quote
5
otherwise exploit my participation,
6
Programming containing any such information and
7
any such appearance,
8
actions.
9
such conduct shall otherwise constitute an
(b)
to exhibit,
depiction,
the
portrayal or
I understand and acknowledge that,
10
actionable tort,
11
consented to such conduct,
12
claims I
13
End of quote.
14
broadcast and
which!
I have freely and knowingly
and waive any and all
have or may have as a result of same.
In paragraph 7 of the release plaintiff
15
agrees not to sue and discharges the defendants
16
from all liability.
i 17
In Paragraph 8 plaintiff
I
agrees to be liable for legal fees
incurred by the!
18
defendants for lawsuits brought in violation of
19
said release.
20
appear on "Naked Dating" she s gned on
After plaintiff was selected to
r
l
n
0
a r
2
' 25
6
2,
erne
p
a
0
plaintiff acknowledges that the release claims
n
ude w thout
ati
e f
low
0 '::
'
32
Proceedings
1
2
participation and appearance in the project
3
including but not limited the fact that I wil
4
naked or partially naked during the filming of the
5
project or activity associated with the
6
production,
7
exploitation of the projection including claims
8
for any injuries,
9
not limited to invasion of privacy and intentional
post production promotion or
illness,
damages including but
10
or negligence affliction of emotiona1 distress
11
re1ated to me being naked or partia11y naked
12
during the filming of the project or otherwise.
13
Again,
14
the 1ast phrase is in bo1d and underlined.
In paragraph 23,
of this agreement plaintiff
15
acknow1edges that quote producer shall have the
16
right to fi1m and or record me nude,
17
nude,
18
exhibit,
19
the Project.
20
or otherwise and broadcast,
partial1y
distribute,
and otherwise exploit such recordings an
As part of the parti ipat
y
0
a
v
0
ct to
n agreement
s
1
25
be
c
s
r
o
d
inf1uence by producer or Viacom media networks to
a t
c pate in the e e
r
ng
an
o
33
Proceedings
1
2
the activates including but not limited to the
3
naked or partia ly naked during the filming of the
4
programming,
s
return for my participation in the event and or
6
activities.
nor have I been promised anything in '
End of quote.
And further plaintiff in this release
7
8
unconditionally releases defendants from any
9
liability arising from her performance in the
10
event.
11
expressed in the papers and argument here is that
12
plaintiff has released all her claims.
13
understood that she would be filmed nude or
14
partially nude and that defendants could and wouldl
15
broadcast,
16
of the show.
17
18
Defendant's position in a nutshell as
distribute,
Further,
Plaintiff
and exploit the recordings
defendants contend that the releases!
do not permit plaintiffs to claim an oral contract
that defendants would blur out frontal or general
nudity.
t
And f
all ,
it's defendants'
position
a
gr
1
a
to
a
a
t
!
25
plaintiff's first cause of action that defendant
26
breached an
ral
on ra
s
id separa e
34
Proceedings
1
2
agreement.
But rather it's covered by the terms
3
of three agreements signed by plaintiff.
4
and explicit terms plaintiff agreed to be filmed
5
nude or partially nude.
6
content depicting her nude or partially nude coul
7
be distributed and exposed by the defendants at
8
their sole discretion.
9
right of any privacy.
In clea
She agreed that the
She expressly gives up he
The language in the
10
agreement with respect to the matter of the
11
filming and post production distribution is in
12
bold and underlined.
13
plaintiff alleges here that she had been promised
14
that her genitalia would be dubbed or blurred
15
clearly falls within the parameters of the three
16
agreements.
17
partial or full nudity.
The oral agreement that
The agreements deal with nudity
Plaintiff further agrees in writing that the
18
contracts could not be modified or amended except '
by writing.
of
he a
Plaintiff now seeks to bury the te
eeme
o fe
a
a
em
fo
lm"
g a
d
s
25
in the nude,
26
first and second causes
i
n
f
accordingly for these reasons,
f act
n are
h
ta e
the
ismissed
35
1
Proceedings
2
pursuant to CPLR 321l (a) (1).
Plaintiff argues that the releases are
3
4
unenforceable,
as there can be no prospective
5
wavering of gross negligence,
6
torts,
7
policy.
8
Abacus Federal Savings Bank versus ADT Security 18
9
NY3d 675,
or intentional
and is unenforceable as against public
In this regard plaintiff cites a case
and Berenger versus 261 West LLC,
10
3d NY 175.
11
scenarios that have no application to the releases'
' 12
These cases,
however,
93 AD
factual
executed by plaintiff in this case.
Abacus relate
13
to a case where a security system was installed
14
and defendant's conduct in failing to properly
15
inspect a malfunctioning equipment resulted in
16
loss to the bank.
17
nuisance action based on intentional and
18
misconduct by the defendants.
19
voluntarily agreed to participate in the show and
' 20
knew specificall
Berenger is a trespass and
Here the plaintiff
what she was par icipating in
d
0
b
25
26
pi t
he
4
0
t
e
nu
partially nude.
c ntrast
t
ases c
ed
p1a
t
36
Proceedings
1
2
there is a long line of cases cited by the
3
defendants in their cases that have
4
re eases in
5
cases such as Klapper versus Graziano 41 Misc.
6
Kings County Supreme Court 213,
7
versus 20th Century Fox are not binding on this
8
court.
9
again sought to participate in the "Naked Dating"
eld such
he entertainment agreement.
While
3d
and Psenicska
Their reasoning is persuasive.
Plaintiff
10
reality show.
She expressly understood the nature
11
of her participation and the manner in which the
12
production could be exploited.
13
nature of her participation with a full
14
understanding of the production and the risks
15
takes this case out of the line of cases that hold;
16
that agreements exempt liability for gross
17
negligence or intentionally conduct are void.
18
Even if the court were to explore the language in
19
the releases,
20
action fail to st
The voluntarily
the third and fourth causes of
e a cause of acti
The gr
SS'
n
a
a
4
25
a
e es n
sepa a e dut
t
separate causes of action based on the same se
f
u
of1
1
37
Proceedings
1
!
2
to blur for a second or less plaintiff's genital
3
parts so outrageous and extreme when in the first
4
instance plaintiff applied to be on the game show
5
or reality show where the participants would be
6
filmed in the nude and they voluntarily appeared
7
on the set to be filmed in the nude with the
8
express understanding that the content would be
9
distributed by the defendants.
10
So for these reasons the third and fourth
11
cause of action are dismissed both pursuant to
12
CPLR 3211 (a) (1)
13
dismissed without leave to replead as the
14
amendment would be futile in light of the three
15
agreements.
and
(a) (7).
The complaint is
16
And finally this court is constrained to
17
grant plaintiff's application under the appearance
18
release to set the matter down for a hearing
19
before a special referee to hear and report the
20
att rne
's fees and costs incurred based on
h
4
25
6
r
ks.
k
MR.
u
BLIT:
Thank you,
MS. McNAMARA
Thank
your Honor.
u,
u
H
no
38
Proceedings
1
2
*
*
*
3
4
5
6
7
Certified to be a true and accurate
transcript of the original stenographic
notes.
---~~--~~£~_JQ~
J
8
9
10
11
12
13
14
15
16
17
18
19
20
SENI
UEL NE GLASS
CO T REPORTER