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The Appeal



In support of his motion of appeal, Gary Suson, a.k.a, Gary Marlon Suson, or Marlon Suson, the founder/creator/photographer of the Ground Zero Museum Workshop, the 9/11 website SeptemberEleven.net, and the book of photographs entitled "Requiem: Images of Ground Zero," and his attorney Jared Lefkowitz filed an brief to the Appellate Division of the Civil Court of the City of New York, County of New York's order of judgement entered by the Honorable Judge Shlomo S.Hagler on July 2, 2008. It is recommended that the reader download the brief and read it in its entirety before proceeding. Adobe Acrobat Reader is required. 

Gary Suson


It's important to note the standards and guidelines in an appeal of a summary judgement of a libel complaint. The actual facts of a case as determined by a court cannot be disputed in an appeal. Rather, the petitioner must show that the court erred in its application of the law as to these facts.

Example: a man is cited for speeding for travelling 45 mph in a 35 mph zone, and the judge listens to testimony and ultimately determines that the man is guilty. Under this standard, the man could only prevail if it could be determined that the judge erred in his application of the law, for example: the speed limit was not 35 mph, it was actually 50 mph. In this n/a example, the finding that the man was speeding, in itself, is not grounds for appeal. Such is the standard that Suson's appeal needed to meet.

Suson and his attorney set out their opening statement in the appeal in the form of a question:


QUESTION PRESENTED


Did the court err in granting defendants-respondents' motion for summary judgment by failing to apply the correct standard of proof?

ANSWER: Yes. This is a libel per se case involving a limited purpose public figure, so there are two standards which the lower court was required to apply. The first is whether or not the defendants knew what they were printing was false or probably false, constituting "actual malice." Plaintiff does not dispute his status as a limited purpose public figure, and does not shy away from the actual malice standard – because that standard has been met. The second standard which the lower court was required to apply, but which neither the trial court or the Appellate Term even mentioned, is the amount of proof a plaintiff is required to submit in order to demonstrate actual malice on a summary judgment motion. The law, as described below, is that there must be sufficient evidence for a jury to find actual malice with "convincing clarity" or by "clear and convincing evidence." The trial court engaged in no analysis whatsoever as to how much evidence was submitted, or needed, to meet this standard. The law requires that the court examine the evidence submitted by plaintiff and the totality of the circumstances. Instead, the lower court impermissibly credited only the facts and assertions submitted by the defendants, while ignoring the facts and assertions adduced by plaintiff, and ignoring the totality of the circumstances which would support a jury finding in plaintiff's favor. The crucial point is that on summary judgment plaintiff was entitled to every inference in his favor. The trial court and the Appellate Term failed to consider that a jury, if it credited the evidence proffered by plaintiff, would be entitled to disbelieve the evidence and witnesses proffered by the defendants. As described below, if a jury believed plaintiff's evidence and not defendants, there are substantial facts enabling a jury to find clearly and convincingly that the defendants knowingly published vicious lies about plaintiff.



Make no mistake, this line of (sic) reasoning is another in an on-going series of blunders by Suson and Lefkowitz. Rather than demonstrating that the court erred in its application of the law as to its finding of the facts and presenting an argument, Suson attempts to claim that the court erred in its application of the law as to its finding of the facts, because he and his attorney didn't like what the court found to be the facts. Basically, a clumsy attempt at an end run around the standard for appeal, and an obvious one, at that.

Adopting the Suson model for appeal would render the Appellate Division to a simple and comedic process:

"The basis of our appeal, your honor? Oh, we didn't like the ruling."

Despite the fact that the only issues that an appeal on this level can raise is whether the court erred in his application of the law, Suson apparently missed the memo, as he then goes on in what is called "Facts and Background" to basically, once again, provide his resume, and his own slanted version of prior events and testimony.

In no modest terms, Suson states: "Plaintiff, a former theatrical scholarship winner to the University of Texas, has written and starred in numerous off-Broadway plays in New York, most notably in the off-Broadway production of "Taxicab Chronicles" to critical acclaim, being called "Talented" and "Impressively Versatile" by the New York Times (October 8, 1999). This same play was covered numerous times by defendants in the New York Post."

Apparently, humility is not a part of Suson's "versatility" toolbox.

Suson goes on to claim, in part: "Plaintiff was a winner of the prestigious Kodak Medallion for photography at age 17..."

Note: We have contacted the Eastman House (eastmanhouse.org): their researchers and those they recommended we contact were unable to verify Suson's claim of winning the award. Suson's name is not in the list of Kodak Medallion winners.
 

Suson not on award list


The rest of the appeal is more of the same: name dropping and pompous bragging in an attempt to reintroduce the same testimony that was already refuted by the court.


Oral Arguments and Supplemental Motion



After what has been described as a "poor and painful performance" during the oral arguments presented to the court by Suson's attorney, Jared Lefkowitz, Suson, sensing the need to somehow boost the case, filed the following motion on January 16, 2008:

"Plaintiff/Appellant Gary Marlon Suson ("Suson"), Founder of the Non-Profit "Ground Zero Museum Workshop" in the County of New York, hereby submits this motion to request permission to submit a Supplemental Brief in Support of Oral Argument. As this Court is aware, this case was heard for oral argument on December 8, 2008. During that hearing, Justices Schoenfeld, McKeon and Heitler posed to Plaintiff's Attorney several detailed questions regarding Plaintiff Suson's defamation lawsuit against the New York Post. Many of these questions concerned the ample evidence in the record demonstrating "actual malice," and why summary judgment should have been denied.

Although Plaintiff is well aware of the unorthodox nature of such a motion after oral argument, Plaintiff asks special consideration of this submission in light of the subject matter and the unfair and detrimental effect these stories had on his life. Mr. Suson, a Fire Department of New York ("FDNY") Honorary Battalion Chief by Special Appointment of FDNY Commissioner Nicholas Scoppetta, respectfully requests that he be given permission to submit, in his own words, clear and concise reasons as to why this case should be heard by a jury of his peers. Based on the facts of record in this case and evidence of public record, it is clear that Plaintiff was caught in the middle of a political dispute between two powerful union members with an aggravated and documented history of disputes, and that Plaintiff was used as a pawn to settle this old score through the help of seasoned, fire union writer Cynthia Fagen of the New York Post, who printed lies, cited unreliable sources and turned a blind eye to "truth" regarding Plaintiff.

As this Court is aware, the sole issue in this case is "actual malice." In addressing this issue, however, the New York Post has made a myriad of misleading and untruthful "factual" allegations regarding the circumstances leading up, and subsequent to, its publication of the articles at issue. Accordingly, in order to correct and clarify the record, Plaintiff seeks to provide this Court with a written response (submitted herewith).

Plaintiff also requests permission to submit a copy of his Barnes & Noble Book, "Requiem: Images of Ground Zero," so that a complete record of his work may be reviewed by this Court. The entire, 200-page book, which was inadvertently not submitted in the original complaint, shows the magnitude of Plaintiff's work and time served as "Official Photographer at Ground Zero for the Uniformed Firefighter's Association" at the former World Trade Center site.

Plaintiff Suson submits that his good name, reputation and future hang in the balance. Plaintiff therefore asks this Court to grant this motion and consider this supplemental submission prior to rendering a decision in this matter. Plaintiff has no intention in representing himself at any future trial in this matter and will be represented by counsel.

DATED: New York, NY
January _, 2009
Respectfully submitted,
______________
Gary Marlon Suson
Ground Zero Museum Workshop
420 West 14th Street
Floor 2
New York, NY 10014"



Suson, of course, offers no arguments in his brief as to how the original court might have misapplied the law. It is, more of the same: shameless posturing by Suson and unsubstantiated charges against the Defense.

In the second to last paragraph of the supplemental brief, Suson seeks to submit a copy of his book, "Requiem: Images of Ground Zero" into the record.

This request likens to the movie, "A Christmas Story."
The little boy in the movie, "Ralphie" (played by Peter Billingsley) also finds himself in a dilemma. He writes an essay on "What I want for Christmas," and believes that once his teacher reads his remarkable essay, he is sure be awarded "respect" and the object of his affection: a Red Ryder B-B Gun.

Suson too, is convinced that somehow, the justices will have the same moment that Ralphie envisioned of his teacher when they read his book.

In Ralphie's case, we can all smile and put this down to youth. As to Suson, we leave it to the reader to connect the dots.
 

Peter Billingsley


Decision on Motion After Oral Arguments



In what seems obvious to all but Suson, the Appellate Court handed down the following decision on January 22, 2009:


"At an Appellate Term of the Supreme Court, First Department Held at the Court House, Boroug on the 22nd day of January"

Present: - Hon. Douglas E. McKeon, P.J.,

" Martin Schoenfeld,
" Sherry Klein Heitler, Justices

Gary Suson, N.Y. County Clerk's # 570349/08
Plaintiff-Appellant N.Y. Civil Court Index # 102960/06
-against-
NYP Holdings, Inc., News America Incorporated, Cynthia R. Fagen ORDER ON MOTION
Murray Weiss, Stephanie Gaskell, John Does I& 2
Defendant-Respondent Cal # 08-360 / Dec 2008 term

The above named plaintiff-appellant having by notice of motion, dated January 16,2008, moved for an order to submit a book and supplemental briefs up to 75 pages and for further relief.

Now upon reading and filing the notice of motion and the affidavit of Gary Suson, sworn to on January 15, 2009, and the papers annexed in favor of the motion, and the statement of Slade R. Metcalf, affirmed on January 22,2009, and the papers annexed in opposition thereto,

It is Ordered that the motion for permission to file supplemental briefs and other material, after the parties argued the appeal at the December 2008 term, is denied."



Decision on the Appeal

In what was no surprise, the Appellate Division of the Civil Court of the City of New York, upheld the Honorable Judge Shlomo S. Hagler's ruling, and denied Suson's appeal. Suson is currently attempting to appeal to another court.

Judge Hagler



Next: Odd Behavior? -->

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