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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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JESSIE NIZEWITZ,
Index No. 158209/2014
Plaintiff,
- against -
VIACOM INTERNATIONAL, INC.,
FIRELIGHT ENTERTAINMENT, INC., and
LIGHTHEARTED ENTERTAINMENT, INC.,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
FRANKFURT KURNIT KLEIN & SELZ, P.C.
Edward H. Rosenthal
Anna Kadyshevich
488 Madison Avenue, 1
0th
Floor
New York, New York 10022
Phone: (212) 980-0120
Fax: (212) 593-9175
Attorneys for Defendants Lighthearted
Entertainment, Inc. and Firelight Entertainment,
Inc.
FILED: NEW YORK COUNTY CLERK 10/16/2014 06:15 PM
INDEX NO. 158209/2014
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/16/2014
Defendants Lighthearted Entertainment, Inc. (“Lighthearted”) and Firelight
Entertainment, Inc. (“Firelight”) (together, the “Production Defendants”) respectfully join and
incorporate by reference defendant Viacom International, Inc.’s (“Viacom”) memorandum of
law and accompanying affirmation and exhibits in support of its motion to dismiss the complaint
(the “Viacom Memorandum”), and seek dismissal of the plaintiffs claims pursuant to CPLR
3211 (a)( 1) and 321 1 (a)(7), together with an award of the Production Defendants’ attorneys’ fees
and costs.
PRELIMINARY STATEMENT
This case involves a claim by a participant in Dating Naked, a reality television show
created and produced by the Production Defendants and telecast on the VH1 cable network,
owned by defendant Viacom. The premise of the show is apparent from its name: the
participants go on exotic dates with each other—and they do so without wearing any clothes.
Indeed, throughout the entire Dating Naked series, the show’s participants are entirely nude. Ms.
Nizewitz, a former actress, model, and stripper, applied to be on the show and explained her
comfort with this premise: “[t]he nude thing isn’t a big deal to me, I’m very comfortable being
naked and with my body in general.”
Since unfettered nudity was a crucial aspect of the program, the Production Defendants
were careful to document the participants’ consent. Before filming began, Ms. Nizewitz signed
three different agreements, on two separate occasions, where she expressly acknowledged and
agreed that she would appear on the show naked. Those agreements are unequivocal. Ms.
Nizewitz agreed: (1) that she would be filmed and photographed fully nude; (2) that the footage
of her would be telecast and distributed throughout the world without restriction and without any
editorial control on the part of Ms. Nizewitz; (3) that she waived any claims against the
Production Defendants arising out of her appearance on the show; (4) that she released the
Production Defendants from any damages she may have suffered as a result of her appearance on
the show; and that (5) she would pay the Production Defendants’ attorneys’ fees and costs in
connection with any lawsuit that she filed in violation of the agreements.
Ms. Nizewitz was featured in the third episode of Dating Naked, which aired in July
2014. For less than one second during that episode, Ms. Nizewitz appeared unbiurred and naked.
Now, despite her express and unambiguous waiver of any claims arising out of these facts, Ms.
Nizewitz brings this lawsuit, claiming breach of an oral contract whereby she was allegedly
promised that her body would be blurred before broadcast. However, when she signed the
agreements consenting to her appearance, Ms. Nizewitz specifically disclaimed reliance on any
extraneous oral representations. Accordingly, as set forth in the Viacom Memorandum that the
Production Defendants incorporate in full herein, as a matter of law and documentary evidence,
the complaint should be dismissed and Ms. Nizewitz should be ordered to pay the Production
Defendants’ attorneys’ fees and costs as agreed.
Moreover, as also explained in the Viacom Memorandum, Ms. Nizewitz’s complaint
must be dismissed for the independent reason that it does not allege the necessary elements to
state any of her claims. Accordingly, the Production Defendants join in Viacom’s motion to
dismiss pursuant to CPLR 3211 (a)(7).
ARGUMENT
Firelight and its parent company Lighthearted are the producers of the reality television
program Dating Naked. Complaint ¶J 11,
13.1
In each episode of Dating Naked, cameras follow
participants as they take part in the ultimate “bare your soul” dating experience—they date
‘The complaint is attached to the Affirmation of Edward H. Rosenthal, dated October 16,2014 (“Rosenthal Aff.”)
as Exhibit A. Unless otherwise stated, the exhibits referenced herein are attached to the Rosenthal Affirmation.
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naked. Compi.

17; see also McNamara Aff. Ex. 4, submitted by defendant Viacom. Ms.
Nizewitz applied, and was selected, to be a participant on the show. Compi.

15, 18. Prior to
any filming, Ms. Nizewitz executed three separate releases in connection with her appearance in
the show (the “Releases”). 2 In each of those Releases, Ms. Nizewitz acknowledged and agreed
that she was fully aware of the format of the program, that she understood and agreed that she
would be filmed, photographed, and recorded fully nude, and that her appearance in the program
may be “disparaging, defamatory, embarrassing or of an otherwise unfavorable nature, may
expose me and my family and/or others to public ridicule, humiliation or condemnation, and may
portray me in a false light.” Rosenthal Aff. Ex. B at pp. 1-3; Id. Ex. C at
pp.
1, 2, 4, 12, 15, 21,
22, 27. At least twelve times, the Releases reiterate in bold and underlined text that Ms.
Nizewitz is agreeing to appear in the program nude. Id. Further, Ms. Nizewitz broadly released
the Firelight and its parent Lighthearted against any and all claims arising out of her appearance
in the program and waived, including claims for invasion of privacy, false light, right of publicity
or personality, misappropriation, intentional infliction of emotion distress, negligent infliction of
emotional distress arising out of her participation in the program. Rosenthal Ex. C at
pp.
12-13;
see also Id. at
p.
27

3; Id. Ex. B at 3. Moreover, the Appearance Release includes a fee shifting
provision wherein Ms. Nizewitz expressly agreed to pay the Production Defendants’ attorneys’
fees and costs in connection with any “any claim or lawsuit brought in violation” of the Release.
Rosenthal Aff. Ex. B at
p.
3.
2
The Releases were signed on March 23, 2014 and April 2, 2014 respectively. See Rosenthal Aff. Ex. B at
p.
3; Id.
Ex. C at
pp.
1, 23, 27. Filming for the third episode in which Ms. Nizewitz appeared began in May 2014. Compl.

20.
The Releases are submitted as documentary evidence pursuant to CPLR 321 1(a)(1). See also Viacom
Memorandum, Point 1(A).
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Ms. Nizewitz appeared in an episode that aired in July 2014. Compi.

23. As is always
the case on Dating Naked, Ms. Nizewitz appeared without any clothes on throughout the
episode. For less than one second in that episode, she appeared nude and unbiurred. See Compl.

24; see also McNamara Aff. Ex. 4 at 16:08. Now, notwithstanding the fact that Ms. Nizewitz
signed the Releases, which waive any claims based on the foregoing facts, she brings suit against
the Production Defendants on the basis of an expressly disclaimed oral agreement. Compare
Compi.

33, with Rosenthal Aff. Ex. B at
p.
3 (“This release sets for the entire agreement
between me and the Company with respect to the subject matter hereof and may not be altered or
amended except in writing signed by both parties.”); id. Ex. C at
pp.
23 (“The foregoing and the
exhibits attached hereto. . . shall constitute the complete and binding Agreement of the parties
and this agreement shall not be modified or amended except by a subsequent writing signed
by all parties hereto.”). For a more detailed recitation of the facts and the contents of the
Releases, the Production Defendants respectfully refer the Court to the Viacom Memorandum.
As explained in the Viacom Memorandum, Ms. Nizewitz’s claims are barred by the
documentary evidence. Moreover, the complaint fails to allege facts sufficient to state a claim.
For the reasons stated therein, the Production Defendants join Viacom in requesting that the
Court dismiss the complaint in its entirety with prejudice and award the Production Defendants
the attorneys’ fees and costs incurred in connection with this motion.
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Dated: New York, New York
October 16, 2014
FRANKFURT KURNIT KLEIN & SELZ, P.C.
By:
Edward H. Rosenthal
Anna Kadyshevich
488 Madison Avenue,
10 th
Floor
New York, New York 10022
Phone: (212) 980-0120
Attorneysfor Defendants Lighthearted
Entertainment, Inc. and Firelight Entertainment,
Inc.
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