## Facts

- Andrew M. Klapper, a New York-licensed plastic surgeon, performed a filmed “full body lift” procedure on Renee Graziano for a reality television program broadcast on VH1.
- During surgery, complications arose; Klapper removed the film crew from the operating room and Graziano was later transferred for emergency care.
- After filming, Graziano made statements describing the surgery as a “near-death experience” and suggesting malpractice or negligence; the show and related promotion allegedly republished those statements.
- Before filming, Klapper signed an appearance release in favor of a production entity that granted broad rights over filming, editing, and exhibition, disclaimed liability, and included a fee-shifting provision.
- Klapper sued Graziano, another individual, and multiple entities involved in producing and broadcasting the program, asserting defamation and other tort claims.
- The corporate defendants moved to dismiss under CPLR 3211(a)(1) (documentary evidence) and CPLR 3211(a)(7) (failure to state a claim), relying primarily on the appearance release.

## Issues

1. Whether the appearance release barred Klapper’s tort claims, including defamation, arising from production, broadcast, and promotion of the program.
2. Whether non-signatory corporate defendants could invoke the release’s protections based on its defined covered parties (e.g., affiliates, licensees, successors, assigns).
3. Whether enforcing a release to waive tort claims in the reality-television context violated New York public policy.
4. Whether, apart from the release, the complaint plausibly stated defamation and related tort claims against the corporate defendants.
5. Whether the fee-shifting clause entitled the production entity to attorney’s fees for enforcing the release.

## Decision

- The court granted the corporate defendants’ motion to dismiss under CPLR 3211(a)(1) and (a)(7).
- The court held the appearance release barred Klapper’s claims against the corporate defendants.
- The court held the release extended to non-signatory corporate defendants within the release’s protected categories tied to production and exhibition of the program.
- The court rejected the argument that public policy invalidated the release in this commercial, voluntary entertainment setting involving a sophisticated signer.
- The court awarded attorney’s fees to the production entity pursuant to the release’s fee-shifting provision.

## Legal Principles

- On a CPLR 3211(a)(1) motion, documentary evidence that conclusively establishes a defense may warrant dismissal at the pleading stage.
- A broadly drafted appearance release may bar tort claims, including defamation-based claims tied to filming, editing, broadcast, and promotion, when the signer consents to editorial control and waives related liability.
- Non-signatories may enforce a release when the contract language clearly extends protection to affiliated or related entities involved in the program’s exploitation (e.g., licensees, successors, assigns).
- Public policy limitations on exculpatory clauses are applied narrowly; waivers in commercial entertainment participation agreements may be enforced absent statutory prohibition or circumstances such as essential services or gross negligence.
- Contractual attorney’s fee provisions may be enforced as written when the moving party successfully enforces the release.

## Conclusion

The court dismissed the defamation and related tort claims against the corporate producers and broadcasters because the surgeon’s appearance release broadly waived liability connected to the program’s production and exploitation, extended to covered related entities, and was enforceable as a matter of contract and public policy; the court also enforced the release’s fee-shifting clause to award attorney’s fees to the production entity.


Klapper v. Graziano, 41 Misc. 3d 401, 970 N.Y.S.2d 355 (N.Y. Sup. Ct. 2013)