GZMW Website Hacked? Federal Court: It's Not True

Angry at the launching of this website, the founder of the Ground Zero Museum Workshop, Gary Suson a.k.a, Gary Marlon Suson(not his real name) -or- Marlon Suson(not his real name), filed a lawsuit against William Wilson, seeking damages of $75,000, and in part, making the false claim that Mr. Wilson had 'hacked' the Ground Zero Museum Workshop website.  

Gary Suson

The Decision

On January 17, 2013, the Honorable Chief Judge Deborah K. Chasanow issued her final ruling on this case (her initial ruling made August 24, 2011) granting summary judgment in favor of William Wilson.

From the decision [emphasis added]:

Complaint Citation Text Start ------>

"The complaint does not even identify the damage that allegedly was caused by Wilson's unauthorized access, but Plaintiffs' subsequent submissions indicate that the alleged damage was Wilson's "stripping of the metatags from the website.""

Citation: (ECF No. 52, at 18).

"Plaintiffs point to no evidence from which a reasonable jury could conclude that Wilson stripped metatags from the website for a period of time long enough to cause the minimum amount of damage required to maintain a civil action."

Citation: (ECF No. 46-1 ¶ 26)

"Wilson further claims that at that point he actually added metadata tags to optimize the website for search engines."

Citation: (ECF No. 46-2 ¶ 27, Ex. 14).

"Plaintiffs never directly dispute this, and they never provide evidence showing when or how Wilson removed metatags, which metatags he removed, how this may have affected site traffic, and how it can be quantified in economic losses. The only semblance of proof offered by Plaintiffs is the affidavit of Benjamin Briggs, an employee of Global Market Exposure. In that affidavit, Briggs states that Suson told him the website was inaccessible from August 10, 2009 until mid-October 2009 and that such a long period of downtime would cause search engines to assign a penalty to the website when it comes back online."

Citation: (ECF No. 52-11, at 2)

"Notwithstanding the fact that Plaintiffs have failed to establish that Briggs is knowledgeable with respect to search engine optimization, his opinion is based on statements made by Suson that are not supported by the record evidence. Moreover, Brigg's affidavit does not quantify the harm allegedly caused to the GZM website."

"Additionally, Suson's statement in his affirmation does not establish that Plaintiffs suffered qualifying losses of at least $5,000 in a year. Suson affirms that GZM paid Global Management Exposure $8,079 through the end of 2010 "to increase the visibility of the GZM website back to where it was before Defendant stripped the metatags." (ECF No. 52-1, at 2). Plaintiffs provide no additional proof of this payment, no itemization of the costs, nor any other facts from which one could determine that these were "reasonable costs" as required under the CFAA. In addition, because Suson affirms that he paid $8,079 over a time period greater than one year, it would be mere speculation or guesswork to conclude that in a shorter time period he paid at least $5,000."

"In short, Plaintiffs cannot establish that Wilson accessed a protected computer without authorization, that Wilson's access resulted in cognizable loss to the website or GZM, or that GZM suffered losses greater than $5,000 in one year. For all these reasons, judgment in favor of Defendant Wilson will be granted on count II."

Complaint Citation Text End ------>

The Honorable Chief Judge Deborah K. Chasanow knew that Mr. Wilson had added metatags: the entire contents of Gary Suson's and William Wilson's e-mails were admitted into evidence during the Discovery portion of the case (making them Public Record), and she had access to this e-mail:

----- Original Message -----
To: CartDesigns Tech Support
Sent: Wednesday, August 12, 2009 11:22 PM
Subject: Re: meta tags including ....





The reader might share the opinion of Mr. Wilson, who finds the level of this dishonesty, committing blatant perjury to a Federal Court, to be a brazen, reprehensible act of a pathological liar.

As to Suson's one decision,'Trespass to Chattels': while performing a diagnostic just weeks before the court's decision was issued, Mr. Wilson discovered the original set-up e-mail sent from A1-Hosting on July 10, 2007. This e-mail was embedded in an older version of Microsoft Outlook that Mr. Wilson had upgraded to a newer version. It was immediately submitted to the court and added to the Discovery evidence.

The said e-mail, found here clearly shows that the webserver account was given to Mr. Wilson, making the account his property. One cannot trespass on one's own property, thus, the ruling could not withstand appeal.

No matter: Neither Suson, nor his attorneys made the required answer within the time the court allotted.

Judgement was granted To William Wilson: a clean sweep for Wilson on ALL counts!

Source: USCOURTS-mdd-8_09-cv-03288-3.pdf

From this document:

Wilson was also permitted to file his amended counter-complaint, which asserted the following counts:

(1) fraud;
(2) breach of contract implied in fact;
(3) quantum meruit;
(4) unjust enrichment;
(5) breach of contract;
(6) common law trademark infringement, passing-off, misappropriation;
(7) misuse of trade secret;
(8) intentional infliction of emotional distress;
(9) defamation;
(10) declaratory judgment; and
(11) accounting.

(See: ECF No. 62).

Wilson moved for entry of default against Suson on March 30, 2012.

When Suson failed to respond, the clerk entered default against him. (ECF No. 81).

Decision Analysis

Before we begin our opinion of the Decision, please be advised that during the Discovery process of this lawsuit:

The entire contents of Mr. Suson's and Mr. Wilson's e-mail correspondence was admitted into the record.

Hence, these e-mails, previously private, are now public record.

We recommend that you download the original complaint, found here and throughly read it and the decision found here before reading further. Take your time, and by all means, read it over a nice bite to eat. Both Deal Chicken and Groupon run daily specials we recommend you use to advantage to get a nice hot meal before reading this page.

To save time, I will be focusing on just a few items to feature from this complaint, as there are simply too many nonsensical entries and I do not have time or space in this document to address all of them. In complaint part ten (10), Mr. Suson and his attorney's tell us [emphasis added]:

"Suson served as 'Official Photographer at Ground Zero for the Uniformed Firefighters Association', a title confirmed by Fire Union Official Rudy Sanfilippo and former FDNY Chief of Department Dan Nigro."

Those who have previously read the complaint filed by Suson and council in his cases filed against the New York Post, the very lovely Stephanie Gaskell, and other defendants will no doubt be groaning loudly at the inclusion of this line into the complaint.

This claim was addressed by the Honorable Judge Shlomo Hagler in his decision here on this matter [emphasis added]:

"The April 15, 2002 Letter

During his time spent at Ground Zero, Suson became friendly with certain fire fighters and other recovery personnel. Suson befriended Rudy Sanfilippo, the Manhattan Trustee of the UFA, who had survived both tower collapses. Sanfilippo had seen the photos that Suson posted on his website and admired Suson's work.

Since Sanfilippo was impressed with Suson's photos, he allegedly offered to make Suson the "Official Photographer" of the UFA at Ground Zero on three conditions: (1) Suson would not photograph any body parts, (2) no images would be released until the recovery was over or until permission was granted, and (3) proceeds from the sale or publication of the photos, if any, would be shared with the UFA's charities. (Amended Complaint at ¶ 21).

Suson alleges that this oral agreement was memorialized in a letter dated April 15, 2002 (Exhibit "10" to plaintiff's Motion) that was signed by both Peter Gorman, president of UFOA and Kevin B. Gallagher, President of UFA as follows:

Suson v NYP Holdings, Inc. (2008 NY Slip Op 50730(U)) C|/Users/Peter/Desktop/NY/2/2008_50730.htm[4/21/2013 11:20:45 PM]

----Start alleged letter----

'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 Childrens 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.'

----End alleged letter----

**Note: as Trustee neither Sanfilippo or Nigro had authority to create or assign job titles**

Copy of alleged UFA letter: Click here

However, Gallagher, who was president from 1996 to July 2002, testified that he did not know Suson, he did not appoint him the official photographer, and the UFA has never had an official photographer.
(Gallagher EBT at 14, 22, 52-53, 61-66).

Gallagher also disputed that he signed the April 15, 2002 letter and the signature on the letter is an unauthorized stamp of his signature.
(Id. at 54, 56, 58, 107).

The other signatory to the letter, Gorman, testified that he told Suson that he never authorized him to be the official photographer for the UFOA and that it never had an official photographer.
(Gorman EBT at 12-13, 49-50, 55-56, 72).

On April 30, 2005, Block, the general counsel of the UFA, told Fagen that the UFA never had an "official photographer" and the April 15, 2002 letter did not authorize such a designation.
(Block EBT at 19-20, 43-46, 81-82).

On the same date, Block sent Suson a "cease and desist" letter demanding that Suson "immediately cease and desist from referring to yourself or representing yourself as the "official photographer" for the Uniformed Fighters Association in any context."

The Honorable Chief Judge Deborah K. Chasanow makes a clear and concise pronouncement on this aspect of the case, which we will come back to later in this document.

In complaint part thirteen (13), Mr. Suson and his attorney tell us [emphasis added]:

"In July 2005, Mr. Nakka Murali of India created a website for GZM, under contract with GZM, with the internet address of Mr. Murali has served as the webmaster of the GZM website since its inception.he performs all updates, changes, designs, and maintainence of the website. Mr. Murali had, over the course of four years, inserted numerous 'meta-tags- into the GZM website, which are key words that are recognized by search engines and can make a site rank higher."

The reader will note the next three images taken of e-mails from Gary Suson to William Wilson. Mr. Wilson has many, many more e-mails on this subject, but three will suffice:

*Note: Mr. Wilson does not share Mr. Suson's view. He admires the work of Mr. Murali, and finds him to be quite talented.

The reality? Nakka Murali did create the first version of the Ground Zero Museum Workshop website, but Mr. Suson was never happy with it. As the first e-mail demonstrates, as early as July 20, 2007, after just meeting William Wilson, he was asking him to work on the GZMW website, which Mr. Wilson then, did. As the e-mails demonstrate, Mr. Wilson did this work from 2007 through 2009. Mr. Suson's complaint was just another perjury. Gary Suson's entire case is framed using this type of (sic) logic.

Judge Hagler

Peter Gorman

Kevin Gallagher

Rudy Sanfilippo

Dan Nigro

Stephanie Gaskell

Judge Deborah K. Chasanow

Nakka Murali

The Heart Of The Ruling

Make no mistake, the heart of this case lies in the past. Gary Suson has been seething with rage since March 31, 2008, the date the Honorable Shlomo Hagler issued his ruling in Suson's original lawsuit against Gary Suson, and in favor of the NY Post. This fact is not lost on the Honorable Chief Judge Deborah K. Chasanow, as she states, as a part of her ruling against Gary Suson [see below; emphasis added] and for William Wilson.

The first paragraph deals with Mr. Suson and his attorney's claim that this website defames or slanders Mr. Suson and/or his website:

"Finally, although not listed in their interrogatory responses, Plaintiffs allege in their complaint that Wilson's website is defamatory. Plaintiffs have not identified specific claims or statements on the website that they contend are defamatory and from the excerpts provided in the summary judgment record, there do not appear to be any defamatory statements."

Moving on:

"To the extent that Plaintiffs intended to assert that the content of the New York Post articles linked or copied on the website are defamatory, this court is bound by the determination to the contrary in New York state court. In Suson v. NYP Holdings, Inc., et al, No. 300605 TSN 2006, in the Civil Court for the City of New York, Gary Suson sued the New York Post alleging, among other things, that a series of articles published in the New York Post concerning Suson and his museum were defamatory. In that case, Judge Hagler awarded summary judgment in favor of the defendants on all counts, in the process determining that Suson was a limited purpose public figure (ECF No. 46-7, at 17), that Suson had not demonstrated actual malice, and that some of the statements were not true (specifically the statement that Suson had not honored his pledge to donate certain proceeds from his Museum). (Id. at 18-19). The determination that the New York Post articles were not defamatory is binding on this court through the doctrine of issue preclusion. Under New York law "[w]here a pending issue was raised, necessarily decided and material in a prior action, and where the party to be estopped had a full and fair opportunity to litigate the issue in the earlier action, fairness and efficiency dictate that the party should not be permitted to try the issue again."

Mr. Suson refuses delivery on that last line. Unable to win appeal of the Honorable Shlomo Hagler's ruling in favor of the NY Post, Suson attempts an end-run around the issue in another court. But the Honorable Chief Judge Deborah K. Chasanow recognizes issue preclusion when she sees it, and cites the appropriate cases:

"Bansbach v. Zinn, 801 N.E.2d 395, 401 (N.Y. 2003) (citing Pinnacle Consultants, Ltd. v. Leucadia Natl. Corp., 727 N.E.2d 543 (N.Y. 2000)).*fn10 "The party invoking issue preclusion must demonstrate the identity of the issues in the prior and current litigations and must establish that the issues were previously decided on the merits. The party seeking to defeat the application of the defense has the burden of establishing the absence of a full and fair opportunity to litigate the issues in the prior action." Thomas & Agnes Carvel Found. v. Carvel, 736 F.Supp.2d 730, 758 (S.D.N.Y. 2010).

Issue preclusion applies here because Suson had a full and fair opportunity to litigate the issue of whether the New York Post articles were defamatory in the New York state court case and lost on the merits."

One more time:

"Suson had a full and fair opportunity to litigate the issue of whether the New York Post articles were defamatory in the New York state court case and lost on the merits."



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