Klapper v. Graziano

41 Misc. 3d 401
CourtNew York Supreme Court
DecidedJune 13, 2013
StatusPublished
Cited by2 cases

This text of 41 Misc. 3d 401 (Klapper v. Graziano) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klapper v. Graziano, 41 Misc. 3d 401 (N.Y. Super. Ct. 2013).

Opinion

OPINION OF THE COURT

Bernard J. Graham, J.

A motion to dismiss has been brought pursuant to CPLR 3211 (a) (1) and (7) by various defendants in this captioned matter. The dismissal motion is brought on behalf of defendants The Weinstein Company, JustJenn Productions, VH1, Marrow Media Company, Viacom Media Networks (which is named “Music & Logo Group Viacom Inc.” in the caption), Electus and Left/ Right, Inc. (hereinafter the corporate defendants) who are involved in the production of the reality television series “Mob Wives.”

The plaintiff, Andrew M. Klapper, M.D. (Dr. Klapper), is a plastic surgeon who has brought the underlying case against the producers of Mob Wives (i.e., the corporate defendants) as well as individual defendants, Renee Graziano and Debra Rossi. The instant motion to dismiss is applicable to the corporate defendants only.

Plaintiff, by his attorneys, has opposed the motion to dismiss and has submitted a memorandum of law and a supplemental memorandum of law in opposition to the motion.

The underlying action was filed by the plaintiff by service of an amended verified complaint dated September 13, 2012. A stipulation was entered into by the respective counsel extending the defendants’ time to answer and allow for a briefing schedule related to this motion.

Argument was heard on the motion in Part 36 of this court before the undersigned on February 14, 2013.

[403]*403Background

Mob Wives is described as a popular reality show which has been shown on the VH1 network for two seasons. Mob Wives is produced as a “work-for-hire” pursuant to a contractual agreement with defendants The Weinstein Company and Electus. The Weinstein Company and Electus, who are the owners of all rights in Mob Wives, have conveyed joint ownership of the show to defendants Viacom Media Networks and VH1. JustJenn and Marrow Media are described as television production companies which assist with the production of Mob Wives. The defendants, referred to as the corporate defendants for the purposes of this motion, act collectively as the producers and owners of the show.

The premise of the show involves the lives of its main participants, Renee Graziano, Drita D’Avanzo, Carla Facciolo and Karen Gravano and their social and personal interactions. Renee Graziano is said to be the daughter of a convicted member of the Bonnano crime family and it is her statements relative to the plastic surgery that form the basis for the underlying lawsuit.

The relevant facts for the purposes of this proceeding involve the appearance of the plaintiff, Dr. Klapper, on the initial episodes of the second season of Mob Wives. Dr. Klapper is a board certified plastic surgeon who is licensed to practice medicine in New York State and he performed a “full body lift” procedure on Ms. Graziano. The procedure is a complex plastic surgery which is designed to remove fat and sagging skin from various parts of the body.

The decision by Ms. Graziano to have the plastic surgery was incorporated into the story arc of the Mob Wives program. Toward that end, Dr. Klapper, who would perform the surgery, consented to appear on camera performing the procedure. As a condition of his appearance, he was required to sign an appearance release and location agreement. The procedure was performed on June 27, 2011 by Dr. Klapper and was filmed in his office.

Ms. Graziano’s procedure allegedly developed complications after Dr. Klapper removed a tattoo on Ms. Graziano’s lower back and the skin was not able to be closed. Dr. Klapper ordered the cameras to be removed from the operating area. There is a dispute as to the events that occurred after the cameras were removed, with the defendants alleging that Ms. Graziano was bleeding and required emergency treatment at Staten Island Hospital. Plaintiff denies that there was any medical error involved.

[404]*404The subject of Ms. Graziano’s plastic surgery then became a part of the story line and was discussed by Ms. Graziano and her costars in episodes 201, 202 and 203 which are the first three episodes of the second season. Ms. Graziano, who is an outspoken character on the show, claims that she “flat-lined” and “almost died” which was repeated several times on the show. She also refers to the experience as a “plastic surgery nightmare.”

The surgery incident was reported in various online news reports which quoted Ms. Graziano who described a “near death experience” and claims to have lost six pints of blood. Ms. Graziano also appeared on radio and television programs discussing her surgery procedure and repeated the claims of medical negligence.1

Plaintiff alleges that the corporate defendants, by their employees, publicized the “knowingly false” statements to the various media outlets in a campaign to promote the show.

Dr. Klapper has sued for defamation against all defendants (fifth cause of action of the amended verified complaint). The case is premised upon the statements of Ms. Graziano and the republication of the statements of Ms. Graziano in connection with the publicity and advertising for the Mob Wives program by the corporate defendants. In addition, Dr. Klapper’s complaint includes a cause of action for slander per se (sixth cause of action) and libel per se (seventh cause of action). The complaint also includes a cause of action for tortious interference with existing contracts and business relations (first cause of action) and tortious interference with prospective business relationships and economic advantage (second cause of action) (see amended verified complaint, annexed to motion to dismiss as exhibit 1).

The plaintiff has also included a cause of action against Ms. Graziano alone for filing a false complaint with the New York State Office of Professional Medical Conduct (plaintiffs third cause of action). A separate cause of action has been filed against Debra Rossi, who had been employed by Dr. Klapper, who alleg[405]*405edly made statements related to the death of a patient of Dr. Klapper following surgery in a separate incident (plaintiff’s fourth cause of action). Neither of these causes of action is relevant to the instant motion by the corporate defendants.

Issues Presented

It is the contention of the defendants that the participation of Dr. Klapper in the Mob Wives television show was conditioned upon a valid and binding release (the appearance release) which specifically and unequivocally bars Dr. Klapper from suing Left/ Right, Inc., the production company who produced the show, as well as any and all affiliates, assigns and subsidiaries involved with Mob Wives’s production. According to the attorneys for defendants, each of the corporate defendants is protected under the terms of the appearance release. Furthermore, the appearance release includes a provision that the plaintiff would be responsible for the defendants’ legal fees incurred in defending this case.

In opposition to the motion to dismiss, plaintiffs attorneys have crafted two separate arguments. First, plaintiff argues that only defendant Left/Right, Inc. is a party to the appearance release and New York law would not recognize the other defendants as covered by the terms of the release. According to plaintiff, the defendants who are not a party to the release cannot be considered “affiliates” of Left/Right, Inc., and are, hence, subject to liability in this action.

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Cite This Page — Counsel Stack

Bluebook (online)
41 Misc. 3d 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klapper-v-graziano-nysupct-2013.