CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X GARY SUSON, Plaintiff, - against NYP

HOLDINGS, INC., NEWS AMERICA INCORPORATED, CYNTHIA R. FAGEN, MURRAY WEISS, STEPHANIE GASKELL, and JOHN DOES 1 AND 2, Defendants. -------------------------------------------------------------------X

Index No. 300605TSN2006

AFFIRMATION IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF CROSS MOTION JARED LEFKOWITZ, an attorney duly admitted to practice in the courts of the state of New York, affirms as follows: 1. I represent the plaintiff in this action, and I submit this affirmation in opposition to the motion by defendants for summary judgment, and in support of plaintiffs cross motion for sanctions pursuant to CPLR 3124 and 3126 based upon defendants discovery violations.

Opposition to Defendants Motion for Summary Judgment 2. Prior to defendants serving their summary judgment motion plaintiff served a summary judgment motion1. Defendants made their motion for summary judgment returnable on

Such motion also included a motion to preclude certain testimony and evidence which is separate and apart from the cross motion contained herein.

the same day. To avoid unnecessary duplication, the parties thereafter entered into a stipulation in which all of the motions are consolidated, and in which the parties agreed that the papers for the motions should all be considered together for purposes of determining these motions and for the record on any appeal. See Exhibit ___. 3. Accordingly, to avoid unnecessary duplication in this already voluminous series of motions, in opposition to defendants motion for summary judgment we respectfully refer the court to plaintiffs affidavit sworn to on December 2, 2007 in support of plaintiffs summary judgment motion, along with the exhibits attached thereto. Attached hereto as Exhibit ___ is a copy of that affidavit (without duplication of the 65 exhibits) for the courts reference. 4. To supplement plaintiffs affidavit, we submit the following additional affidavits in opposition to defendants motion for summary judgment: (a) the affidavit of FDNY Chief of Department Dan Nigro (Exhibit ___), who confirms plaintiffs status as the Unions official photographer; and (b) the affidavit of Lee Ielpi (Exhibit ___), the family member of a 9/11 victim, referred to in paragraph 42 of Cynthia Fagens affidavit, and who is quoted by defendants in the libelous articles. Mr. Ielpi confirms in his affidavit that he was misquoted in the articles and that his comments were taken out of context. 5. It is axiomatic that if the jury at trial believes that a witness has lied about one portion of their testimony, the jury may conclude that the witness lied about all of their testimony and/or disregard the entirety of that witness testimony. Based upon the affidavit of Mr. Ielpi, a jury would be entitled to conclude that the defendants misquoted other witnesses in the articles, took the 2

statements of other witnesses out of context, and indeed, the jury is entitled to disregard every statement made by the defendants in support of their motion. In this light, defendants motion for summary judgment must be denied. 6. Summarized below is the evidence that plaintiff was the official photographer for the Unions at Ground Zero and that defendants knew the union reps were lying when they disavowed his status: ! On May 28, 2002, the Fox News Channel (a related company to the Post) did a story about plaintiff in which Josh Gibson and Heather Nauert call him The Matthew Brady of the World Trade Center. The Post published an article dated July 27, 2002 and entitled Haunting Shots in which the Post itself stated that plaintiff is the only photographer officially sanctioned by the FDNY to snap archive footage in the aftermath of 9/11. The Post published another article about plaintiff dated September 10, 2002 and entitled Reward Offered for Lost WTC Camera in which the Post again confirmed plaintiff as the official photographer stating that he was the Uniformed Firefighters Associations official shooter at Ground Zero. Deposition testimony proving that defendant Cynthia Fagen knew about these prior Post articles, knew about plaintiffs background as a photographer working at Ground Zero, and knew that he was authorized to be at Ground Zero. Deposition testimony that Post editor David Ian Boyle knew in 2002 that plaintiff was authorized to be at Ground Zero and that he was working there. Letter of introduction dated April 15, 2002 which is signed by both union Presidents. Letter faxed to Cynthia Fagen on August 31, 2005 by Rudy Sanfilippo, the UFAs Manhattan Trustee, confirming plaintiff was the official photographer.

All of the news and media agencies having confirmed plaintiffs status over the course of the previous three years or more. 3

Plaintiffs book, published in 2002, in which it states on the book jacket that plaintiff is the official photographer. The fact that in the midst of all of this media attention, and the publication of plaintiffs book, the unions never once objected. An official UFA parking placard issued to plaintiff in 2004. The words of Chief Joe Pfeiffer, a high ranking FDNY officer who wrote a forward for plaintiffs book. The testimony of Brian Bonsignore, a former FDNY Lieutenant and Fire Marshal, who supervised Recovery efforts at Ground Zero.

! !

7. One of defendants primary defenses in this defamation lawsuit is truth. In light of the startling testimony by Mr. Ielpi that he was misquoted and his statements were taken out of context, which the jury may find to be deliberate and purposeful lies by defendants, nothing defendants say may be credited for the purpose of granting summary judgment in favor of defendants. The jury will be entitled to credit the evidence listed above (in addition to the other matters outlined in plaintiffs affidavit) and find that defendants knew they were printing falsities (actual malice). 8. Further issues requiring the denial of defendants motion for summary judgment are as follows. 9. Plaintiff described in his affidavit the shameful stratagem defendants employ of not remembering crucial events, issues, and witnesses in this case. A chart of these memory lapses from Cynthia Fagens deposition is attached to plaintiffs affidavit as Exhibit 7. 10. In paragraph 13 of Cynthia Fagens affidavit sworn to on December 5, 2007, defendants boldly continue this tactic. Fagen states that she cannot recall the editor at the Post who first gave her the press release announcing the opening of plaintiffs museum, which editor was 4

the person who triggered the investigation and publication of the libelous articles which are the subject of this action. 11. It is respectfully submitted that this is a deliberate attempt to shield the

defendants from liability because they know that the Post editor who initiated the publication of the articles knew full well who plaintiff was, his background, and his affiliation to the Unions. This editor knows all too well the willful and deliberate lies contained in the articles. As such, this is a fact issue which must be resolved in plaintiffs favor for the purposes of summary judgment. The jury will be entitled to look upon defendants failure to give a name and interpret it as a deliberate obfuscation. 12. Moreover, the failure by defendants to provide the name of the initiating editor must be analyzed along side the defendants failure to remember who wrote the headlines for the libelous articles. The court is respectfully referred to paragraph 71 from plaintiffs affidavit, regarding our quest for the names of the authors of the headlines of the libelous articles. As described, the headlines are themselves libelous and independently actionable, and the defendants cannot remember the names of the authors of the headlines either. As noted, a jury is entitled to address this remarkable coincidence -- that defendants cannot remember the name of the initiating editor for the articles, or the name of the authors of the headlines. The jury will be entitled to find that defendants are purposefully withholding the names of witnesses who would level devastating testimony and admissions against defendants. 13. Finally, in paragraphs 15 and 19 of the affidavit of Murray Weiss sworn to on December 6, 2007 the defendants rely upon information provided by a confidential source. While the defendants may arguably be insulated by the reporters privilege from divulging the name of this 5

source, they may not then utilize the source in support of their summary judgment motion or in opposition to plaintiffs motion. That portion of defendants motion must, we submit, be disregarded by the court. 14. For the foregoing reasons, we submit that there is a material issue of fact as to whether defendants knew they were printing lies, and defendants motion for summary judgment should therefore be denied in its entirety.

Cross Motion 15. There are two blatant and intentional discovery violations by the defendants evident from their motion papers. 16. The first involves the videotape. In paragraph 6 of the affidavit of Stephanie Gaskell sworn to on December 6, 2007, she refers to her practice of audio taping the comments of Mayor Bloomberg . . . In paragraph 13, she refers to a videotape recording of her asking a question of Mayor Bloomberg. The videotape is attached to her affidavit as exhibit 3. 17. A request for this videotape was covered in no less than four categories of

documents within the discovery demands served upon defendants, requests 5, 6, 11, and 16 (Exhibit ___). Yet, the tape was not produced in discovery. 18. There can be no doubt that defendants purposefully withheld this evidence until after discovery was over and until after the Notice of Trial was filed in order to spring it upon plaintiff in this motion without our having the opportunity to examine the recording, question Gaskell about it at her deposition, or conduct a further investigation which would lead to other admissible evidence in plaintiffs favor. The inference should be that such an investigation would 6

indeed reveal evidence destroying the accuracy, credibility, and veracity of the tape, or other evidence detrimental to defendants case. 19. Further, defendants cemented their deception and their purposeful intent to

mislead when Gaskell testified at her deposition that she had tape recorded the exchange but had taped over it: Q: Did the Mayor have any other response other than that? A: Other than those words this is a disgrace? Other than that word? Q: Yes. A: Yes, he did. Q: What were they? A: I dont recall. Q: Did you write them down? A: I sure did and I also tape recorded them. Q: Where is that tape recording? A: I dont have it. Q: What happened to it? A: It was taped over or not in my possession anymore. Gaskell Tr. page 40 line 25 - page 41 line 16 (Exhibit ___) 20. Even if Gaskell obtained the videotape some time after her deposition (so that she was not technically committing perjury at her deposition) defendants are represented by experienced counsel who unquestionably knew about defendants continuing obligation to produce discovery. 7

21.

The second blatant discovery violation is the alleged statement by Cliff S.

Russell, Jr. described by Cynthia Fagen in paragraph 39 of her affidavit. Production of such a statement is included within any number of discovery requests, and no such statement was produced. We know from the affidavit of Lee Ielpi regarding his quotes that we cannot trust the quotes of Russells statements provided by defendant.

Conclusion 22. Defendants state in their memorandum of law that summary judgment is favored in libel cases of this kind, and yet fail to emphasize the final clause of the authority cited so long as there are no material issues of fact. This is the law in libel cases no more or less than any other type of case. As described in plaintiffs affidavit and herein, we believe that there is more than enough evidence to grant summary judgment in favor of plaintiff. But even if there is not, there is ample proof requiring the denial of defendants motion. 23. In addition, for the foregoing reasons, and taken in conjunction with the fact that we know the defendants M.O. because they misquoted Lee Ielpi and took his comments out of context, we ask the court to find that withholding the videotape and the statement by Russell was a purposeful deception on the part of defendants, and that the court strike defendants pleadings, and/or impose monetary sanctions pursuant to CPLR 3124 and 3126. 24. Alternatively, we ask the court to impose any and all other available remedies for discovery violations pursuant to CPLR 3124 and 3126, including but not limited to: (a) strike all testimony and statements in affidavits by Gaskell and the other defendants about this tape and the statement by Russell, (b) strike the tape and the Russell statement from the record on defendants 8

summary judgment motion, (c) preclude defendants from opposing plaintiffs testimony on the subject matter contained in the tape, and (d) preclude defendants from offering testimony on these subjects at trial or from offering them into evidence at trial.

Dated: New York, NY January __, 2008 ______________________________ JARED LEFKOWITZ