The Complaint

As a result of the NY Post articles (see: articles.htm), on March 3, 2006, the founder of the Ground Zero Museum Workshop, Gary Suson (a.k.a, Gary Marlon Suson -or- Marlon Suson), filed a lawsuit against the NY Post, seeking summary judgment. In support of this complaint, Suson filed a notarized statement of verification, stating, in part: "the foregoing Verified Complaint and all of the facts described are true..." (see the attached documents as part of the original complaint file). 

Gary Suson

NY Post attorneys later filed their own motion seeking dismissal of Suson's complaint and asking for summary judgment in favor of the NY Post.

In what the presiding judge, the Honorable Shlomo Hagler later described in part as "voluminous," the ninety-five (95) part sectioned and numbered complaint is, simply put, all over the lot. It's a rambling, sometimes complaint, sometimes anecdotal, and sometimes declarative document that, when seen in its best light, is little more than conclusions in search of facts. Before continuing with this analysis, the reader should take the time to download and the read the complaint (in PDF format) in its entirety. Adobe Acrobat Reader may be required. Full version is available at Deal Chicken.
Judge Hagler

Analysis of the Complaint

Section "1" of Suson's complaint reads :

"1. This is an action to recover $5,000,000 in general damages, along with punitive damages, on each of four (4) malicious, false, and libelous articles published in the New York Post."

Suson and his attorney, Jared Lefkowitz, make a major blunder in this opening section. Suson leads with the wording: "recover $5,000,000 in general damages." This places an inherent obligation and subsequent burden on the complaint: Suson must document this loss, and the documentation must show that a major portion on the alleged $5,000,000 was actually lost. Worse, the statement sets the bar for the rest of the document: the expectation will be that the complaint is a concisely constructed, economically centered, document. It is not, and this error becomes glaring, as we will see later in the analysis.

Sections "2" and "3" of Suson's complaint lays out the basis of the complaint:

"2. This case involves one of the most tragic events in American history, the attacks on 9/11. The malicious, false, and libelous articles published in the Post call plaintiff a grave robber from the Ground Zero recovery site, and call plaintiff a con-man and liar about his status as the official photographer at Ground Zero for the Uniformed Firefighter's Association."

"3. As described below, plaintiff was the official photographer for the Uniformed Firefighter's Association, and plaintiff never, ever, stole anything from Ground Zero. The four (4) libelous articles were published by defendants with actual malice. Prior to publication of the articles defendants were in possession of written documentation confirming that the articles were false, defendants ignored witnesses who confirmed that the articles were false, and defendants ignored prior articles in the Post which confirmed plaintiff's credentials as the official photographer at Ground Zero for the Uniformed Firefighter's Association."

Viewing section 2, we see that Suson leads his charge with the claim that the four (4) NY Post articles were "malicious." This too, may be seen as a blunder.
In the landmark decision of New York Times Co. v Sullivan.376 US 254 (1964), the United States Supreme Court created a "qualified constitutional privilege" for public officials in defamation actions. Simply put: a plaintiff who is a public official must prove the defamatory publication was made with "actual malice" or "constitutional malice." The Supreme Court defined "actual malice" as knowledge of falsity or reckless disregard for the truth. Further, they concluded "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his, or her, publication."
Hence, Suson's best chance at prevailing in his case was to claim that he was not a public official, or even a limited public official, but rather, just a photographer that was caught up in a bigger story: the attacks on the World Trade Center on 9/11.
Suson then goes on in the complaint by helping the defendants with a series of his own admissions. Suson openly states that he is an "actor, writer, and photographer." Further, he builds a bridge of events that illustrate points the defense would otherwise be charged with proving themselves: his interviews and stories written about his photographs by CNN, CBS, NBC, etc., thus labeling himself a public figure.

At some point, Suson must have realized his error, or had his folly pointed out to him. A mere two (2) weeks after his complaint was filed, Suson engaged in a series of verbal gymnastics with members of a message board named Wired NY:

Note: post #24

Suson then attempts a 180 degree turn from the claims made in his complaint:

"1.) I am not a "public figure""

In the NY Wired reply, Suson also makes the claim:

"2.) You have quoted our awesome Mayor as saying something about ME personally and/or this Museum when he never did. I do not see quotation marks from the great Mayor ANYWHERE around my name or my museum. He refers to "Them" and "People" because he does not know who I am nor was he referncing ME. He was asked most likely a generalized question about exploitation. My name nor the museum does not appear in quotes from him. No other news source reported these alleged comments except one tabloid paper."

More on this later in this analysis.

Suson spends quite a bit of time attempting to make a case for his claim of being the "Official Photographer at Ground Zero." In support of this, Suson submits the story of his meeting with Rudy Sanfilippo, a Trustee of the Uniformed Firefighter's Association. Sanfilippo allegedly offers to make Suson the "Official Photographer at Ground Zero" with various conditions, one of which was that proceeds would be shared with the union's charity. Suson claims that the title was approved by both fire union presidents: Peter Gorman of the Uniformed Fire Officer's Association and Kevin Gallagher of the Uniformed Firefighter's Association. Suson also submits a letter from Sanfilippo "confirming that plaintiff was the official Photographer at Ground Zero for the Uniformed Firefighter's Association" and claims that he was given a pass to the Ground Zero site that reflected his position and granted him authority to be there.

The Decision

On March 31, 2008, the Honorable Shlomo Hagler issued his ruling, granting summary judgment in favor of the NY Post and dismissing Suson's suit, concluding that:

"Substantial truth is... a defense to a libel claim."

Decision Analysis

The first article's headline is the subject of much of the complaint's attention: " 9/11 CAM 'SCAM' ; 'OFFICIAL' GROUND ZERO FOTOG IS A PHONY: FDNY"
Suson's letter from Rudy Sanfilippo "confirming that plaintiff was the official Photographer at Ground Zero for the Uniformed Firefighter's Association" was revealed by testimony to have been written expostfacto. Even if we are to believe the letter, the fact remains: Sanfillipo was a Trustee, not a President. As such, he had no authority to declare any title. He may as well as declared Suson to be the Pope. His letter carried no weight.

Rudy Sanfilippo

Testimony also revealed there was an original letter that was submitted but not cited to any great degree in the original complaint. This letter was dated April 15, 2002, and was allegedly signed by both Peter Gorman, president of UFOA and Kevin B. Gallagher, President of UFA. Judge Hagler cited the letter (below) in his decision:

Peter Gorman

"We are writing this letter of introduction for Gary Suson, a professional photographer who was enormously supportive of our members who were working at the World Trade Center site after September 11th. We permitted Mr. Suson access to the site and to our members who were engaged in rescue and recovery operations. He assembled over many months an extraordinary collection of photographs of the rescue/recovery and other workers at the site. We hope that you find these photographs are as special and moving as we do. In the event that Mr. Suson receives any proceeds for the sale or publication of these photographs, he has made arrangements to share his earnings with the Widows and Children's Fund that we administer on behalf of families of firefighters and fire officers lost in the line of duty.
We appreciate your attention to Mr. Suson's work."

During testimony, Kevin Gallagher denied that he signed the letter and stated that the signature on the letter is "an unauthorized stamp of his signature." Peter Gorman, testified that he had told Suson that "he never authorized him to be the official photographer for the UFOA and that the union has never had an official photographer." Indeed, there is no mention of bestowing any title upon Suson in this letter. In fact, when brought to their attention, the officials for the Union of the Uniformed Firefighter's Association sent Suson several letters demanding that he "cease and desist" from calling himself the "Official Photographer at Ground Zero for the Uniformed Firefighter's Association."

Kevin Gallagher

Suson's complaint is a curiosity at best, and a series of contradictions at worst, as to the finances related to this case. If we put aside the affect that the undocumented initial claim of a loss of the better part of $5,000,000 had on this complaint, we're still left with factoring the other financial claims put forth in the complaint and subsequent testimony.

In section 21, in part, Suson cites the terms of the agreement as to the photos he took: "no images would be released until the recovery was over or until permission was granted, and proceeds of the photos, if any, would be shared with the union's charity."

In section 28, we're told that "Barnes and Noble offered plaintiff a book deal. Plaintiff accepted the book deal, and received a $55,000 advance to assist him in producing and developing the book. Consistent with the guidelines set down by Sanfilippo, and the union, and the promises plaintiff had made to adhere to these guidelines, plaintiff had turned down all offers to sell his images during the recovery period."

But there are a few problems with the (sic) reasoning in section 28. The statement "plaintiff had turned down all offers to sell his images during the recovery period" is in error. The images in question were/are not solely his. Suson was only free to use the images if he shared the proceeds with the union's charity. By Suson's own admission, he shared a mere few hundred dollars of this $55,000. Thus, the NY Post's statement as to Suson "not honoring his pledge" and thereby breaching his contract with Uniformed Firefighter's Association, is substantially true.

This fact wasn't lost on Suson. A closer reading of section 28 reveals Suson laying the groundwork for what will become, at best, a clumsy (sic) defense against this breach of contract: "Plaintiff accepted the book deal, and received a $55,000 advance to assist him in producing and developing the book."

Seemingly aware of the weak nature of this defense, Suson attempts to prop up his argument in section 29 by further developing this scheme:

"29. In fact, plaintiff had put his acting and writing career on hold in order to dedicate himself to this project, and took out loans in order to pay expenses. Plaintiff to this day still makes monthly payments on these loans."

This argument carries no weight. Suson voluntarily agreed to document the events at the Ground Zero recovery site, and agreed to do so at his own expense. His debts were, and continue to be his own responsibility, and he would have been responsible for paying them whether the events of 9/11 occurred, or did not.

As an update to this, we will see in an outside document, an interview with CNN's Fredricka Whitfield, Suson, having breached the agreement, may not be entitled to any compensation related to these photos, and actually admits as much:

"WHITFIELD: And Gary Suson, you said you will not be selling these images. These really are for the enjoyment and for the memory of all the workers from Ground Zero that you're recording?

SUSON: Actually, now the union has given me permission to go ahead and release the images in a book, with the agreement that all proceeds are shared with the widows and children's fund and other charities. So, most likely this fall in the next year, most possibly this fall, there will be a book, a coffee table book out with all my work from day one through the entire recovery.

WHITFIELD: All right, Gary.

Source: CNN Interview Transcript

From the proverbial, "horse's own mouth" ... all proceeds.

Fredricka Whitfield

Suson's mouth is once again, his own undoing, as section 43 of the complaint demonstrates. Quoting the complaint, in part, Suson complains that the articles falsely accuse him of "...stealing artifacts and victims identifiable personal belongings from the Ground Zero recovery site."

However, testimony given by NY Post reporter Cynthia Fagen revealed that when she sought documentation for Suson's account on how he acquired these "personal belongings" from the Ground Zero recovery site, she began by reading Suson's own account posted on his museum's website:

"Back in New York, I went to my storage facility on a Sunday afternoon to retrieve some items but before I left, something caught my eye. It was a plastic box of 'artifacts' from Ground Zero. Artifacts is a bit of a fancy word for what can really be deemed as 'junk sitting in the garbage pile' at Ground Zero during the recovery.

The plastic box contained an odd assortment of items that I retrieved from a larger dumpster just on the outskirts of the Ground Zero site. . . . I didn't see what some would deem 'garbage." I saw remnants of another period; artifacts that would one day be appreciated and speak volumes to its viewers. The items did in fact hit home for me because I knew someone owned them: they meant something to someone and represented the humanity that existed up high in those beautiful towers. . . . I saw a muddy doll, a shattered make-up case and a woman's broken business shoe. . . . I loaded up what I could in a plastic bag, informed a Chief that I had taken some 'garbage' (he chuckled) and brought them home."

Once again, from the horse's own mouth, Suson's own words contradict him.

Worse, the implications go well beyond. The inspectors could not prove that items removed from the Ground Zero recovery site and placed on display at the Ground Zero Museum were not taken from the trash, and trash is considered to be discarded property, therefore, the items were not confiscated. Suson made further claims that many of these items were actually store stock from retail stores that operated at the twin towers. This disclosure is yet another bump in the road for Suson's case: if Suson knew that these items were retail store stock, then the text (above) on his website is false, and his display of these items in his museum is also a falsity: the items are retail store stock, not artifacts "that meant something to someone."
Store stock does, in fact, mean something to the retailer: profit.

Hence, it becomes reasonable to conclude that the NY Post's claim that Suson is "scamming the public" is substantially true.

Few, if any tourists are willing to pay $27 a head to view discarded store stock!

The foundation of Suson's case rested precariously on one key element: the four (4) stories published by the NY Post were maliciously written. For any public figure, proving malice is a hurdle that is practically impossible to overcome. Suson effectively "shot himself in the foot" and in essence, made the NY Post's case for them by establishing the evidence himself as a public figure. Judge Hagler actually quotes Suson's description of himself in his decision. Make no mistake: the Judge is laughing at Suson by citing this reference.

Judge Hagler's finding: Suson is a "Limited Public Figure"

-and, predictably...

Suson Fails to Demonstrate "Actual Malice"

From this finding, and the conclusion that the fourteen (14) statements Suson claimed "defamed" him were substantially true, Judge Hagler granted the NY Post a summary judgment and declared Suson's motions to be moot.

Next- The Appeal-->


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