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.

(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

_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

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Dated:

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,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.

Proceedings

THE COURT:

Viacom International Inc. moves pursuant to CPL

3211 (a) (1)

Nizewitz's complaint with prejudice and for

attorney's fees and costs.

3211 (a) (7)

to dismiss plaintiffs Jessi

In motion sequence 002,

defendants

Lighthearted Sntertainment Inc.

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.

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

The

to thre

a
h

based upon

gr ss ne 1 ge ce

e e

is essentia ly not valid because New York doesn't

cogniz

no

a part

to

Proceedings

itself from gross negligence?

MS. McNAMARA:

Your Honor,

there are

certain circumstances where the courts have

refused to enforce releases wten the claims are

for gross negligence or intentional tort.

first of all let me say here there really can't bel

claims of gross negligence or intentional tort

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

he

ss

n ent onal

are in circumstances where they're involving

26

bus

esses ope

th

pub

cmmo

Proceedings
2

carriers,

involving claims of pGblic utilities,

there is simply and I

Honor,

state of New York that protects would be reality

stars from embarrassment.

public policies that is at issue in the case law

that is reticent in certain circumstances to

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.

cite but one example.

Take the

There the plaintiff ha

She was photographed in a

She signed a release,

a full signed!
i

20

Years later the

NBC used

the photograph in what she considered to be a

degrad ng and humil ating scene where a character
ot

te r

f
2

me it and
not

more

de

he same ho ds here.

He

ear.

lease

he

errns of

a m

h ut

releases could
e

Proceedings

could not be more express.

The terms of the

contract make it crystal clear that not on y was

she going to be filmed entirely in the nude in

front of cast and crew, but that they had the full,

right to publish and disseminate her

participation.

the definition of participation is the filming of

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,

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

es

wh

the

They have al
d

sort of

Proceedings

1
2

did not have a contractual obligation to do the

blurring.

this.

That's where her claims butt heads on

And I

say,

if you look at any of this you

have the Brook Shields'

case,

the court of

appeals,

away nude photos of her when she's 10 years old

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

2
4
I

25

26

us

bas

she was oromised orally that there would be

lu r

--------------------------------------------- ---

--------

Proceedings

THE COURT:

consistency.

blurred.

But there is some

Most or all of it essentially is

MS.

McNAMARA:

THE COURT:

There is no question.

So probably and on the

motion I have to assume the truth of that.

Probably she was told not to worry,

MS.

10

McNAMARA:

THE COURT:

Even I

correct?

never heard

have to assume that

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

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

ld t

the merger provision t

pro vi

but I

think that the key

or not does not rna e

o e

ct

e contract expressly

s e a knowle

ed

wa n'

Proceedings

anything and she wasn't relying on anything.

wasn't relying on a promise to enter into the

contract.

there.

executed this contract,

clearly.

and that is signed by the parties.

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,

ubmi

your Ho o ,
t

ear

th s area,

ur

r .

ha

has looked at similar circumstances even when the

plai

fs had

laimed some hin

d dn'

Proceedings

anticipate,

something that was embarrassing,

something that they believed to be degrading in

each and every case,

uniformly held up,

and held plaintiffs to the bargain that they made

and the contractual provisions that they entered

into.

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.

We gave
I

you know,

We explained ouri

cases for VH1 with Klapper,

the

And we

d
2

25
6

L______ -

'

r.

licity claim for use that

o f

es of

r de and adver is

y i

s not within the

That'

10
Proceedings

1
2

miracle in State of New York.

a claim of gross negligence that is merely a weak

statement of their oral contract claims.

Finally,

Nor can they state

they have not begun to allege the

type of outrageousness that's required under the

clear case law in New York for an intentional

infliction of emotional distress claim.

For these independent reasons,

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

by

1 pa

s hereto.

Plaintiff's complaint alleges that she was

to d she wou d be b urred before she ent

11

Proceedi:1gs

Assuming as your Honor

any of these agreements.

suggests that that was true,

the subject

matte~

ofi

her three agreements that she signed goes ri

to:

the heart of the nature of her performance on the I

show and her agreements to allow her to be filmed,

to be exhibited and distributed,

acknowledgement she might be embarrassed or

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

ollateral argument.

eement.

As a matter o

aw 15-301 bars that kind

here are one case

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

operate that way.

distributed that way,

dealing with how certain property was going to be

distributed that may have been the kind of case

where the new activities is completely unrelated

to the agreement, but here this alleged blurring

argument is right in the course of the agreement

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

25
26

pr

em

BLIT

Fi st

d n't th nk a law

is

dust

You have Viacom

cou

T a

's

o::

te.

13
Proceedings

That's not what I

taste of the show,

MR.

is the

or taste of television.

BLIT:

The epidemic really is the

abuse of the general public by these reality T.V.

shows.
THE COURT:

am adjudicating tere,

Let's start with that.

How

is your client abused here where she fills out an

application.

She solicits wanting to be on

~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,

18

THE COURT:

What does she think is going!

19

to happen to the film?

20

MR.

BLI

Good quest on.

Her

25

26

t
an

e vie

is

g i

e ab

o s e

hing.
In fa

you will be ab e to se

14
1

Proceedings

you were in a bathing suit,

in a bikini.
THE COURT:

less than if you were

Couldn't she have negotiate

an agreement that says well I want to be in a

bathing suit not nude?

MR.

7
8

I don't think there is any

negotiation abilities on behalf of any -THE COURT:

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:

Will now

think they will say yes.

Tha~'s

where we have to draw'

All these reality shows whether

this one or -w

th

seem to say it's novel,

nove

It's t

e o dest

but sex sellin.g is not

de a

he

15
Proceedings

1
2

way.

MR. BLIT:

The point here is that

everybody had a reasonable expectation what was

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

happen this
1

d h

art

Bef

e this

ce e wa

actuall

me ,

asked her to do this specific scene and asked

26

to

sit

erse f

wr st ing pos

fo

16
Proceedings

specific scene.

So yes our belief it was

intentional.

wasn't negligence.

purposeful, but what else is there?

THE COURT:

wasn't

t:

Under the agreement they

could have filmed her nude and distributed her

nude as well.

signed.

Under the various agreements she

MR. BLIT:

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

MR. BLIT:
26

o make

mo

mi

rele

It wouldn't be the fi st
a ke.

Bu

he

sue

17
1

Proceedings

case has not really been addressed by the

Appellate Division.

certain Supreme Court cases and a Federal court

case.

opportunity to prevent the continued epidemic of

abusing the general public without the knowledge

that lawyers have,

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

la

he

he e

there.

ns

And t

e e

That's not your claim.

s a sec

sion

less,

'm

Your

18
Proceedings

1
2

sure how much time.

the claim.

me where her genitalia was exposed of.

MR.

THE COURT:

BLIT:

That's

Correct.
Nothing to do with food or

medicine.
MR.

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.

world t
d

at it would be exploited by the

nda ts.

19
Proceedings

THE COURT:

She thought she was going t

be filmed and not exploited.

exploitation in the way you're thinking.

in terms of -MR.

BLIT:

I don't mean
I mean

The use of the video the way

the show was taped,

of course she had an

understanding that it was going to be displayed to

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,

Putting this clip on national:

17

T.V.

18

boast ratings of the show at my client's expense.

to sell,

THE COURT:

19
20

to sell the show,

to

Isn't that as counsel notes

in her argument there is really no difference

e

h
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

sn't that?

MR. BLIT:

It's separate duty.

THE COURT:

MR. BLIT:

THE COURT:

MR. BLIT:

it was intentional.

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

BLI

ou se

the

25

standard that you can t

contract o t

26

ge er

en e s

PP

your own
0.

21

Proceedings

THE COURT:

MR.

Thank you,

BLIT:

Okay.

Anything else?

One second,

your Honor.

your Honor.

THE COURT:

MS.

Counsel briefly.

McNAMARA:

If I

may,

your Honor,

want to make a couple of points.

plaintiff's counsel indicated that really what was

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

19
0

And here in her agreement she fully'

she may be disparaged,

are embarrassing,
and my fami y to

wh
25
2

that things may happen that 1

unfavorable,

that may expose me

ic rid c le,

ined it

1 ation,

21 of the part cipation agreement

r

ust says

that

n bold and

he following

22
Proceedings

Producer shall have the right to film and or

2
3

record me nude,

partially nude,

broadcast,

exploit such recordings and the project."

distribute,

and otherwise

One of our counsels point

THE COURT:

exhibit,

or otherwise.

that time has come out to put an end to the

exploitation as he uses the word,

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

at

hat

s an
t

ol s

stepped in and invoked public policy as I've

2

ate

be o e w

re t

er

h n

23
1

Proceedings

involving the concern of the

citizens generally where businesses are open to

the public and individuals don't have a choice but

to use those businesses,

public utilities.

this state that I'm aware of where individual who

make an informed choice where the facts are

spelled out to them that they chose to subject

10

s~ate

to protect the

or common carriers,

or

There has been no precedent

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

They rely

if every

you know
s~ar.

was goi g to be

ou
i

25

photogra
og

e ph

ap

du

s are taken on a daily basis.

hey are d ssemi ated

or

Thousands
a

24
Proceedings
2

after that in reliance on releases entered into

when those

photographer and there licensee to use those

photographs in myriad other ways many of which

would never have been anticipated argue at the

time the release was entered into.

industry that is in place.

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

' 25

26

IvJR.

THE COURT:

Very briefly.

BL T:

rna

'm sure

ay

25
Proceedings

1
2

going to change what you have on that paper that

you are about to read.

saying is that the interest of their clients

outweighs.

grossly negligent and destroy people's lives for

the benefit of reality television.

They should be able to be negl gent,

THE COURT:

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

n s

and you

hat sh

to appear nude.
MR.

BLI

N t

in

th

agr erne t

tha

26
Proceedings

1
2

says it.
THE COURT:

Assuming for

the purposes of

the CPLR 321(a) (7)

motion the truth of the

allegations of the complaint and giving plaintiff

as the non moving party every favorable inference,

the plaintiff alleges that in March of 2014,

submitted an application to audition for a reality:

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

however,

her genitals.

me

udit

woul

25

broadcast on VHl.

26

ati

in Pa ama.

ed

sh

Filming took place on a beach

Pla ntiff

11 g s

hat dur

Proceedings

1
2

the filming she was strongly encouraged to perfo

a wrestling maneuver on her date.

perform this maneuver after she was assured again

that all frontal and genital nudity would be

digitally blurred from the broadcast.

receiving these assurances plaintiff agreed to

perform the maneuver.

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

e
2
2

26

be

p ess

ed

ha

nudity wou d be blurred when broadcast.

ause of a t

n asserted f

al

The firsti

he de enda ts

28
roceedings

1
2

for breach of an oral contract.

Plaintiff alleges

that the defendants through their agents entered

into an oral agreement where defendants agreed to

blur any frontal or genital nudity when the show

was broadcast.

agreement she consented to use of her image for

commercial exploitation.

And that based on defendants

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."

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

ree

y b

ng

he

ta

area when they broadcast the show featuring the

26

plaint ff.

The show plaint f

aud

29

Proceedings

1
2

entitled "Dating Naked" which was broadcast on the'

VHl network which is owned by Viacom.

According to Viacom the programs was a twist

on the dating show formula.

nude and the reason for this was this removed

barriers which were imposed by clothing,

the daters would be more open to interact honest y

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

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

n spending a week in a
t

2
25

The release states in relevant part in

pa agraph o e qu te,

"I'm

h s

re ease i

30

Proceedings

consideration of and an inducement to company

allowing me to partie pate in the participant

selection process and poss bly as a participant inl

the programming,

discretion,

will possibly receive as a participant in the

programming.

this release is a condition of the company

in the company's sole,

absolute

and in consideration of the benefits 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

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

ep

ag e

at

the selection process and programming freely and

t

y a

ha

he as

31
Proceedings

1
2

Further,

the agreement provides that the

defendants have the right to exploit her

participation quote

otherwise exploit my participation,

Programming containing any such information and

any such appearance,

actions.

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

a r

2
' 25

2,

erne

plaintiff acknowledges that the release claims

n

ude w thout

ati

e f

low

0 '::

'

32
Proceedings

participation and appearance in the project

including but not limited the fact that I wil

naked or partially naked during the filming of the

project or activity associated with the

production,

exploitation of the projection including claims

for any injuries,

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

ct to

n agreement

25

be

inf1uence by producer or Viacom media networks to

a t

c pate in the e e

ng

an

33
Proceedings

1
2

the activates including but not limited to the

naked or partia ly naked during the filming of the

programming,

return for my participation in the event and or

activities.

nor have I been promised anything in '

End of quote.

And further plaintiff in this release

unconditionally releases defendants from any

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.

And f

all ,

it's defendants'

position

gr

to

25

plaintiff's first cause of action that defendant

26

breached an

ral

on ra

id separa e

34
Proceedings

agreement.

But rather it's covered by the terms

of three agreements signed by plaintiff.

and explicit terms plaintiff agreed to be filmed

nude or partially nude.

content depicting her nude or partially nude coul

be distributed and exposed by the defendants at

their sole discretion.

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

em
fo

lm"

g a

25

in the nude,

26

first and second causes

accordingly for these reasons,

f act

n are

ta e
the

ismissed

35

Proceedings

pursuant to CPLR 321l (a) (1).

Plaintiff argues that the releases are

3
4

unenforceable,

as there can be no prospective

wavering of gross negligence,

torts,

policy.

Abacus Federal Savings Bank versus ADT Security 18

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

25
26

pi t

he

nu

partially nude.
c ntrast

ases c

ed

p1a

36
Proceedings

1
2

there is a long line of cases cited by the

defendants in their cases that have

re eases in

cases such as Klapper versus Graziano 41 Misc.

Kings County Supreme Court 213,

versus 20th Century Fox are not binding on this

court.

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'

a
4

25

e es n

sepa a e dut

separate causes of action based on the same se

f

of1

37

Proceedings

to blur for a second or less plaintiff's genital

parts so outrageous and extreme when in the first

instance plaintiff applied to be on the game show

or reality show where the participants would be

filmed in the nude and they voluntarily appeared

on the set to be filmed in the nude with the

express understanding that the content would be

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

25
6

ks.

MR.

BLIT:

Thank you,

MS. McNAMARA

Thank

your Honor.
u,

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

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SENI

UEL NE GLASS
CO T REPORTER