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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
PATRICK F. BISOGNO, INDEX NO.: 150281/2013
Plaintiff,
vs. NOTICE OF MOTION
JOHN LIBERTELLA and GIOVANNI LIBERTELLA,
FE wk'-njtft'fuf-
Defendants. CXOTIP/gE /C
{AMimcn
7 XJNUANCE
PLEASE TAKE NOTICE that upon the annexed Brief/Affidavit of Defendant John
Libertella, sworn to on February Q ,
2020, together with exhibits annexed thereto, and the
files and records of the case thus far, Defendant John Libertella, will move the Supreme Court of
The State of New York, Richmond County, located at 26 Central Avenue, Staten Island New
York, Room 131, on the of February, 2020, at am/pm, or as soon
thereafter as counsel may be heard, for an Order of Summary Judgment Dismissing all counts of
plaintiffs civil complaint as filed against him, and;
FURTHER ORDER, Granting Summary Judgment on Count One for assault by the
plaintiff against the defendant, with defendant withdrawing all other counts as set forth in his
counter-claim, together with any different or just relief as the Court may deem within its
jurisdiction.
PLEASE TAKE FURTHER NOTICE, that any answering papers must be filed at least
(7) Seven days prior to the return date, pursuant to CPLR §2214(b).
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By:
John Libertella
693- Hillcrest Place
Valley Stream, New York, 11581
Addressed To:
Counsel for Plaintiff/Defendant
766 Castleton Avenue
Staten Island, New York 10310
Counsel for co-Defendant Giovanni Libertella
Gladstein Keane & Partners, PLLC
26 Broadway
New York, New York 10004
JoHn Libertella,
Defendant/Counter-Claimant pro se’
^h, 2020
7,)
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
PATRICK F. BISOGNO, INDEX NO.: 150281/2013
Plaintiff,
vs. DEFENDANT’S BRIEF
JOHN LIBERTELLA and GIOVANNI LIBERTELLA
Defendants.
DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1. Now Comes John Libertella, the Defendant/Counter-Claimant pro se’ in the above
captioned matter, and being of legal age, files instant brief in support of his Motion for Summary
Judgment Dismissing all counts of plaintiffs civil complaint as filed against the Defendant, and
Granting Defendant/Counter-Claimant Summary Judgment based upon Assault by plaintiff
against defendant/counter-claimant, as set forth under Count One, and defendant/counter
claimant withdrawing all remaining counts of counter-claim.
STANDARD FOR SUMMARY JUDGMENT
2. The standard for Granting Summary Judgment is met, where plaintiff s civil
complaint does not establish a prima facie case for success at trial, where there are no issues of
genuine facts in dispute, which would allow the plaintiff to achieve a successful verdict at trial
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supporting his charge of ‘Slander’/Defamation per se\ where any statements as made by the
defendant following the assault by plaintiff against defendant were TRUE! As were any news
accounts which flowed from the event. See: Saxon v. Tuns Foon On2. 87 A.D.2d 867, (2d
Dept. 1982); also: Alvarez v. Prospect Hosd.. 68 N.Y.2d 320, 324 (1986) Any form of evidence,
documentary or otherwise, may be considered in ruling on a motion for summary judgment. See
Wilkinson v. Skinner, 34 N.Y.2d 53.56 (1974).
• The altercation is verified by the video which captured plaintiff Thrusting his arm inside
the elevator doors where Defendant and his co-defendant father were located. See copy of
video submitted with motion.
• The police responded to the scene and based upon "probable cause', the plaintiff was
arrested for the assault against Defendant. See: copy of police report submitted with
motion.
• The medical records prove necessary medical treatment and follow-up medical records
prove pain and suffering. See: copy of medical records verifying injury, medical
treatment, pain and suffering.
• That Defendant took a picture of his visible facial injury caused by plaintiffs assault.
See: copy of picture taken verifying facial contusion resulting from plaintiffs assault
against defendant/counter-claimant.
3. That the evidence as adduced to the record and exhibited herein establish a prima
facie case for Summary Judgment dismissing plaintiff s claim, where additional counts each fail
once plaintiff cannot establish that wfiat the defendant/counter-claimant is alleged to have said
was ‘False’.
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4. That the incontrovertible evidence proves that plaintiff in fact assaulted the
defendant/counter-claimant.
5. That aside from plaintiff count of slander, the remaining counts are duplicitous and
with reference to his count of emotional distress, plaintiff never sought indispensable medical
or psychological examination or treatment, nor has plaintiff provided any indispensable
expert affidavits substantiating his claim, and to the contrary admitted during deposition
that he never received any medical treatment.
6. That the incontrovertible evidence as exhibited hereto, proves an altercation between
the parties and the medical evidence proves an assault by the plaintiff against the defendant, with
the plaintiff being arrested at the scene and charged with assault.
ELEMENTS OF DEFAMATION
7. The fundamental element of a Defamation claim is "a ‘False statement’, published
without privilese or authorization to a third party, constitute fault as judged by at a
minimum, neslisence standard, and must either cause special harm or constitute defamation
perse’”. See: Frechtman v. Gutterman, 115 A.D.3d 102, 104 (1st Dept.2014).
8. Importantly, a pleading which sets forth a cause of action for defamation must allege
“the time, place and manner of the false statement and specify to whom it was made. See: Dillon
v. City ofNew York, 261 A.D.2d 34, 38 (1st Dept 1999). Emphasis added.
9. In the instant case plaintiff fails to state a claim upon which relief can be granted, in
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failing to specify, name or identify the specific individuals to whom defendant alleged
defamatory statements were made.
10. That in paragraph 20 ofplaintiff complaint, plaintiff avers and alleges statements
by the defendant without stating the names of the individuals to whom the statements were made,
rendering plaintiffs complaint fatally flawed in sustaining a charge of defamation, and plaintiffs
complaint and factual recitation in support thereof are insufficient to establish a valid cause of
action for defamation and must be dismissed.
DEFENDANT’S STATEMENTS ARE ALLEGED TO HAVE TAKEN PLACE DURING
JUDICIAL PROCEEDING AND ARE PROTECTED
11. That it is well settled that statement made in the context ofjudicial or quasi-judicial
proceedings are privileged and immune from a defamation claim, contingent only on that
statements made mat be considered in some way “pertinent” to the issue of the proceeding. See:
Martirano v. Frost, 25 N.Y.2d 505, 507-508 (2d Dept. 1969); also see Front Inc, v. Khalil. 24
N.Y. 3d 713, 718(2015).
12. Moreover the privilege applies to statements made in or out of Court, on or off the
record, and regardless of the motive with which they were made. See: Park Knoll Association, v.
Schmidt. 59 N.Y.2d. 205, 209; also; Rabiea v. Stein. 69 A.D.3d 700 (2d. Dept. 2010).
13. That in the instant case the overwhelming evidence indicates that the statements
allegedly made by the defendant on May 9th, 2013, were made in the context of a pending
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judicial proceeding, chiefly, a proceeding where defendant’s ex-wife/ also plaintiffs sister was
seeking to enforce a judgment for child support, before the Richmond County Family Court.
5. That it is furthermore well settled that ‘Truth’ is an absolute defense to defamation.
“Truth is an absolute defense to a libel action, regardless of the harm done by the statements”.
See: Kamalian v. Readers Disest Assn. Inc. 29 A.D.3d 527, 528; also see: Love v. Morrow &
Co., 193 A.D.2d 586, 587. “even if a publication is not literally or technically true in all
respects, the defense of truth applies as long as the publication is “substantially true” and minor
inaccuracies are acceptable. See: Kehm v. Murtha, 286 A.D.2d. 421, 422 (2d Dept. 2001) also
see: Carter v. Visconti, 233 A.D.2d 473, 474 (2d Dept. 1996).
CONCLUSION
6. That as evidenced in the incontrovertible record, coupled with exhibits and leading
case authority, the plaintiff has failed to establish a prima facie case w'orthy of trial and there are
no issues of genuine fact in dispute w'hich merit a trial, or could result in a different verdict more
favorable to the plaintiff, where the plaintiffs complaint is fatally flawed and simply does not
state a claim upon which relief can be granted, lacking fundamental elements of each of the
counts, including but not limited to slander and defamation per se (Counts 1/7) of plaintiff s
legally defective complaint and the overwhelming evidence as adduced to the record (exhibits in
support attached hereto) prove that plaintiff assaulted the defendant-counter-claimant, requiring
medical treatment, pain and suffering, and where defendants damages have causation to the
Count of Assault as set forth more fully in defendant’s counter claim, entitling the defendant to
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an Order of Summary Judgment dismissing plaintiffs complaint in if s entirety, and a further
Summary Judgment on count one of defendant’s counter-claim assault and a money judgment in
an amount to be determined by a jury a trial, together with court costs and reasonable attorney
fees, and any different relief that the Court may determine to be just within it’s jurisdiction.
^Jphn Libertella,
H)efendant/Counter-Claimant pro se’
February(^\?2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
PATRICK F. BISOGNO, INDEX NO.: 150281/2013
Plaintiff,
vs. DEFENDANT’S AFFIDAVIT
JOHN LIBERTELLA and GIOVANNI LIBERTELLA,
Defendants.
/ss://
DEFENDANT’S AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT
1. That affiant John Libertella, deposes and says:
2. That I am the Defendant/counter-claimant pro se’ in the above captioned matter.
3. That I am of legal age.
4. That I was intentionally assaulted by the Plaintiff Patrick F. Bisogno,
5. That Plaintiff intended to and did cause me physical harm, pain and suffering,
requiring medical treatment and further medical treatment during recovery.
6. That the assault took place while I was in an elevator with my father Giovanni
Libertella (co-Defendant), who was present and is an eye witness to the altercation.
7. That police were summoned to the scene and they arrested the plaintiff for assault
based upon their investigation.
8. That I suffered a contusion to my face, pain, and suffering.
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9. That at no time did I physically threaten the Plaintiff, or provoke the assault.
10. That the Plaintiff is my ex-wife’s brother in-law and my former brother-in-law.
11. That Plaintiff is also my ex-wifes attorney formerly representing her in a domestic
relations matter (divorce) in the Richmond County Family Court.
12. That any statements I made following the assault were and are TRUE!
13. That the statements are alleged to have taken place during a judicial proceeding and
are shielded from suit.
14. That Plaintiff testified during deposition that he never sought any medical or
psychological treatment following the event of assault when he was arrested.
15. That there are no issue’s of material fact in dispute as to the assault committed
against me by the Plaintiff or the insufficiency of Plaintiff charge of slander or defamation per
se’ as alleged by the Plaintiff, lacking indispensable elements to sustain the charges and all other
counts lack indispensable elements to survive summary judgment, and or are duplicitous and
must be dismissed, in an Order of Summary Judgment in favor of the Defendant/Counter
claimant.
16. That Plaintiff at no time during instant proceeding put forth an indispensable expert
witness to verify his claim of emotional distress.
17. That if I am granted Summary Judgment for assault I will voluntarily withdraw all
remaining counts as alleged in my counter-claim, and seek a money judgment for damages, pain
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and suffering, to be determined by a jury, together with court costs, and reasonable attorney fees,
and any other or different relief as determined by the Court within it jurisdiction.
18. That I state and declare that all facts and averments as set forth in my companion
brief are all true and correct to the best of my knowledge and belief, and that the exhibits
submitted in support of my motion for Summary Judgment are authentic, and if submitted at trial
would constitute evidence and I make this affirmation under the threat of prosecution for perjury
for any knowing false statement.
fJohn Libertella
Affiant
Sworn to in my presence on -i ,2020
Me ENA VERM. A
iblic • State of New York
NO. U1 VE:j349175
Oualiiied in Ness at; County
r,
Cf ! Oct 17. 2020
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CERTIFICATION OF SERVICE
That I John Libertella, do hereby certify that I have caused Plaintiff Counsel and co
defendant counsel to be served with a true copy of within pleading together with exhibits via
U.S. certified mail addressed to their principal office as set forth and addressed below.
Addressed To:
Counsel for Plaintiff/Defendant
766 Castleton Avenue
Staten Island, New York 10310
Counsel for co-Defendant Giovanni Libertella
Gladstein Keane & Partners, PLLC
26 Broadway
New York, New York 10004
phn Libertella,
efendant/Counter-Claimant pro se’
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BISOGNO v. LIBERTELLA
INDEX NO. 150281 2015
FEBRUARY 7.2020
EXHIBITS FOR SUMMARY JUDGMENT
- PLAINTIFF'S AMENDED COMPLAINT
- DEFENDANT JOHN LI BERTEL LA'S ANSWER TO AMENDED VERFIED COMPLAINT
WITH COUNTERCLAIMS
- STATEN ISLAND DA FILE WHICH CONTAINS NYPD ARREST DOCUMENTS,JOHN
LIBERTELLA'S MEDICAL RECORDS AND DISTRCT ATTORNEY DOCUMENTS.
- PHOTOGRAPH OF DEFENDANT JOHN LIBERTELLA .MAY 9.2013 AT HOSPITAL.
- JOHN LIBERTELLA’S MEDICAL RECORDS FROM MEDICAL/HEALTH PROVIDERS DUE
TO THE MAY 9,2013 ALTERCATION.
-COPY OF DVD OF THE MAY 9.2013 ALTERCATION IN FAMILY COURT .RICHMOND
COUNTY STATEN ISLAND.NY.
- REPORT ON CELL PHONE RECORDING,RECORDED ON MAY 9,2013,FAMILY COURT
25 HYATT STREET,STATEN ISLAND ,NY. BY PAUL GINSBERG, PRESIDENT ,
PROFESIONAL AUDIO LABORATORIES.1NC.
- COPY OF JUSTIA CASE BISOGNO v. BORSA " DECIDED AND ORDERED ON MARCH
28,2011, SUPREME COURT .RICHMOND COUNTY BY HON. JUDITH N. McMAHON.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
----------- _________.----------------X
PATRICK F. BISOGNO,
AMENDED VERIFIED
Plaintiff,
COMPLAINT
-against-
Index No.: I50281/13
JOHN LIBERTELLA and GIOVANNI Date Purchased: 5/l4/13
LIBERTELLA,
Defendants.
__________---------.____--------------X
Plaintiff his attorneys, BISOGNO & of the
by MEYERSON, LLP, complaining
Defendañts, respectfully allege, upon information and belief:
I. That on May 9, 2013, and at alltimes herein mentioned, Plaintiff was, and stillis,a
resident of the County of Richmond, State of New York. Accordingly, jurisdiction and venue are
proper in Richrnond County.
2. That this action fallswithin one or more of the exceptions set forth in CPLR §l 602.
3. That on May 9, 2013, and at alltimes herein mentioned, Defendant, JOHN
LIBERTELLA, was, and still is,a resident of the County of Nessaü, State of New York.
4. That on May 9, 2013, and at all times herein mentioned, Defendant, GIOVANNI
LIBERTELLA was, and stillis,a resident of the County of Nassau, State of New York.
5. Plaintiff is,and was at all timeš mentioned herein, an attorney licensed to practice law
in all courts in New York State, and has prâcticed laivin New York for more than twenty three (23)
years.
6. As an attorney, Plaintiff has always ccaducted himself honestly and professionally
and has never been guilty of any misconduct or malpractice.
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7. That on May 9, 2013, Plaintiff was lãwfúlly about the premises known as Richmond
County Family Court, located at 25 Hyatt Street, Staten Island, New York, 10301, for judicial
proceeding seeking enforcement of a judgment against JOHN LIBERTELLA for failing to pay
child support, as ordered by the Court.
8. That on May 9, 2013, Defendants were lawfully about the prerñises known as
Richmond County Family Court, located at 25 Hyatt Street, Staten Island, New York, 10301, for
judicial proceeding seeking enforcement of a judgment against JOHN LIBERTELLA for failing to
pay child support, as ordered by the Court.
9. After the Defendants exited the courtroom, the Court respectfully requested that
Plaintiff give Defendant, JOHN LIBERTELLA, his contact information for future proceedings as
he was pro se during this proceeding.
10. Plaintiff approached Defendants near the elevator area of the aforementioned
.
premises to give Defendant, JOHN LIBERTELLA, Plaintiff's contact information.
I1. Defendant, JOHN LIBERTELLA, took out his cell phone and began recording
Plaintiff seconds after he walked out of the courtroom and mndnned to videotape Plaintiff during
the interaction between the above-referenced parties.
12. As Plaintiff began to JOHN his father and Co-
speaking Defendant, LIBERTELLA,
Defendant, GIOVANNI LIBERTELLA, circled around the Plaintiffs back and began verbally
abusiñg Plaintiff, attempting to antagonize Plaintiff while his son and Co-Defendant, JOHN
LIBERTELLA, videotaped Plaintiff.
13. Defendant, GIOVANNI LIBERTELLA, in a staged and plan.nal attack began
verbally assaulted Plaintiff by ridiculing and mocMng his family, including his mother, children and
-
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wife, in an attempt to entice Plaintiff into a physical altercation while JOHN
Co-Defendâñt,
LIBERTELLA, videotaped Plaintiff.
14. Defeñdâñt, JOHN LIBERETELLA, contiñüed to videotape while he also
antagoñized Plaintiff by putting the video camera at or about his facial area and false
by making
accusations about Plaintiff s role in his divorce and also verbally attempted to entice Plaintiff into a
physical altercation so that Defendant may capture iton videotape.
15. While Defendants entered the elevator on the 4th floor they continued to verbally
harass and abuse Plaintiff by mocking him, and his family and by placing the camera near his
person, until Plaintiff harmlessly waived at the camera and not contacting any part of either
Defendants'
body. .
16. That on said Defendanta alleged that
May 9, 2013, during interaction, Plaintiff,
PATRICK F. BISOGNO, assaultad Defendant JOHN LIBERTELLA. Both Defendants began
shouting simultaneously that Plaintiff pushed Defendant, GIOVANNI LIBERTELLA, violently
and then punched, Defendant, JOHN LIBERTELLA, with a closed fist to the nose.
17. Defendants, in concert, began yelling for help alleging that they were accanited by
Plaintiff. Defendants continued to scream this threüghest the crowded floor of the courthouse.
Defendants continued to scream that they were accani+ed until the court officers beared down onto
the Plaintiff and forcibly removed him from the drea of the Defeñdañts. Defêñdants contiñüed to
scream that Plaintiff punched Defcadañt, JOHN LIBERTELLA, and violently pushed, Defandant,
GIOVANNI LIBETELLA, and alleged that Plaintiff had done this on a prior occasion to
Defandant, JOHN LIBERTELLA. The area was cmwded with people, as well as Plaintiff s peers
and fellow attorneys.
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FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND PATRICK F. BISOGNO, INDEX NO.: 150281/2013 Plaintiff, vs. NOTICE OF MOTION JOHN LIBERTELLA and GIOVANNI LIBERTELLA, FE wk'-njtft'fuf- Defendants. CXOTIP/gE /C {AMimcn 7 XJNUANCE PLEASE TAKE NOTICE that upon the annexed Brief/Affidavit of Defendant John Libertella, sworn to on February Q , 2020, together with exhibits annexed thereto, and the files and records of the case thus far, Defendant John Libertella, will move the Supreme Court of The State of New York, Richmond County, located at 26 Central Avenue, Staten Island New York, Room 131, on the of February, 2020, at am/pm, or as soon thereafter as counsel may be heard, for an Order of Summary Judgment Dismissing all counts of plaintiffs civil complaint as filed against him, and; FURTHER ORDER, Granting Summary Judgment on Count One for assault by the plaintiff against the defendant, with defendant withdrawing all other counts as set forth in his counter-claim, together with any different or just relief as the Court may deem within its jurisdiction. PLEASE TAKE FURTHER NOTICE, that any answering papers must be filed at least (7) Seven days prior to the return date, pursuant to CPLR §2214(b). RECEIVED 0-3 yjaiO R^unoo piiounpi.y CIVIL TERM CLERKS’ OFFll^ 00‘SH J 9£I£9'2£ UtfZiZ 0Z0Z/L0/Z0 CO Sr NOIiQU 1/2 FES 07 2020 Si§ B68/.6TV J1 RICHMOND COUNTY £'X l SUPREME COURT y 1 of 284 d FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 2 of 284 b FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 By: John Libertella 693- Hillcrest Place Valley Stream, New York, 11581 Addressed To: Counsel for Plaintiff/Defendant 766 Castleton Avenue Staten Island, New York 10310 Counsel for co-Defendant Giovanni Libertella Gladstein Keane & Partners, PLLC 26 Broadway New York, New York 10004 JoHn Libertella, Defendant/Counter-Claimant pro se’ ^h, 2020 7,) 2/2 3 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 4 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND PATRICK F. BISOGNO, INDEX NO.: 150281/2013 Plaintiff, vs. DEFENDANT’S BRIEF JOHN LIBERTELLA and GIOVANNI LIBERTELLA Defendants. DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1. Now Comes John Libertella, the Defendant/Counter-Claimant pro se’ in the above captioned matter, and being of legal age, files instant brief in support of his Motion for Summary Judgment Dismissing all counts of plaintiffs civil complaint as filed against the Defendant, and Granting Defendant/Counter-Claimant Summary Judgment based upon Assault by plaintiff against defendant/counter-claimant, as set forth under Count One, and defendant/counter claimant withdrawing all remaining counts of counter-claim. STANDARD FOR SUMMARY JUDGMENT 2. The standard for Granting Summary Judgment is met, where plaintiff s civil complaint does not establish a prima facie case for success at trial, where there are no issues of genuine facts in dispute, which would allow the plaintiff to achieve a successful verdict at trial 1/10 5 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 6 of 284 R FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 supporting his charge of ‘Slander’/Defamation per se\ where any statements as made by the defendant following the assault by plaintiff against defendant were TRUE! As were any news accounts which flowed from the event. See: Saxon v. Tuns Foon On2. 87 A.D.2d 867, (2d Dept. 1982); also: Alvarez v. Prospect Hosd.. 68 N.Y.2d 320, 324 (1986) Any form of evidence, documentary or otherwise, may be considered in ruling on a motion for summary judgment. See Wilkinson v. Skinner, 34 N.Y.2d 53.56 (1974). • The altercation is verified by the video which captured plaintiff Thrusting his arm inside the elevator doors where Defendant and his co-defendant father were located. See copy of video submitted with motion. • The police responded to the scene and based upon "probable cause', the plaintiff was arrested for the assault against Defendant. See: copy of police report submitted with motion. • The medical records prove necessary medical treatment and follow-up medical records prove pain and suffering. See: copy of medical records verifying injury, medical treatment, pain and suffering. • That Defendant took a picture of his visible facial injury caused by plaintiffs assault. See: copy of picture taken verifying facial contusion resulting from plaintiffs assault against defendant/counter-claimant. 3. That the evidence as adduced to the record and exhibited herein establish a prima facie case for Summary Judgment dismissing plaintiff s claim, where additional counts each fail once plaintiff cannot establish that wfiat the defendant/counter-claimant is alleged to have said was ‘False’. 2/10 7 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 dÞ GP 8 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 4. That the incontrovertible evidence proves that plaintiff in fact assaulted the defendant/counter-claimant. 5. That aside from plaintiff count of slander, the remaining counts are duplicitous and with reference to his count of emotional distress, plaintiff never sought indispensable medical or psychological examination or treatment, nor has plaintiff provided any indispensable expert affidavits substantiating his claim, and to the contrary admitted during deposition that he never received any medical treatment. 6. That the incontrovertible evidence as exhibited hereto, proves an altercation between the parties and the medical evidence proves an assault by the plaintiff against the defendant, with the plaintiff being arrested at the scene and charged with assault. ELEMENTS OF DEFAMATION 7. The fundamental element of a Defamation claim is "a ‘False statement’, published without privilese or authorization to a third party, constitute fault as judged by at a minimum, neslisence standard, and must either cause special harm or constitute defamation perse’”. See: Frechtman v. Gutterman, 115 A.D.3d 102, 104 (1st Dept.2014). 8. Importantly, a pleading which sets forth a cause of action for defamation must allege “the time, place and manner of the false statement and specify to whom it was made. See: Dillon v. City ofNew York, 261 A.D.2d 34, 38 (1st Dept 1999). Emphasis added. 9. In the instant case plaintiff fails to state a claim upon which relief can be granted, in 3/10 9 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 10 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 failing to specify, name or identify the specific individuals to whom defendant alleged defamatory statements were made. 10. That in paragraph 20 ofplaintiff complaint, plaintiff avers and alleges statements by the defendant without stating the names of the individuals to whom the statements were made, rendering plaintiffs complaint fatally flawed in sustaining a charge of defamation, and plaintiffs complaint and factual recitation in support thereof are insufficient to establish a valid cause of action for defamation and must be dismissed. DEFENDANT’S STATEMENTS ARE ALLEGED TO HAVE TAKEN PLACE DURING JUDICIAL PROCEEDING AND ARE PROTECTED 11. That it is well settled that statement made in the context ofjudicial or quasi-judicial proceedings are privileged and immune from a defamation claim, contingent only on that statements made mat be considered in some way “pertinent” to the issue of the proceeding. See: Martirano v. Frost, 25 N.Y.2d 505, 507-508 (2d Dept. 1969); also see Front Inc, v. Khalil. 24 N.Y. 3d 713, 718(2015). 12. Moreover the privilege applies to statements made in or out of Court, on or off the record, and regardless of the motive with which they were made. See: Park Knoll Association, v. Schmidt. 59 N.Y.2d. 205, 209; also; Rabiea v. Stein. 69 A.D.3d 700 (2d. Dept. 2010). 13. That in the instant case the overwhelming evidence indicates that the statements allegedly made by the defendant on May 9th, 2013, were made in the context of a pending 4/10 11 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 12 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 judicial proceeding, chiefly, a proceeding where defendant’s ex-wife/ also plaintiffs sister was seeking to enforce a judgment for child support, before the Richmond County Family Court. 5. That it is furthermore well settled that ‘Truth’ is an absolute defense to defamation. “Truth is an absolute defense to a libel action, regardless of the harm done by the statements”. See: Kamalian v. Readers Disest Assn. Inc. 29 A.D.3d 527, 528; also see: Love v. Morrow & Co., 193 A.D.2d 586, 587. “even if a publication is not literally or technically true in all respects, the defense of truth applies as long as the publication is “substantially true” and minor inaccuracies are acceptable. See: Kehm v. Murtha, 286 A.D.2d. 421, 422 (2d Dept. 2001) also see: Carter v. Visconti, 233 A.D.2d 473, 474 (2d Dept. 1996). CONCLUSION 6. That as evidenced in the incontrovertible record, coupled with exhibits and leading case authority, the plaintiff has failed to establish a prima facie case w'orthy of trial and there are no issues of genuine fact in dispute w'hich merit a trial, or could result in a different verdict more favorable to the plaintiff, where the plaintiffs complaint is fatally flawed and simply does not state a claim upon which relief can be granted, lacking fundamental elements of each of the counts, including but not limited to slander and defamation per se (Counts 1/7) of plaintiff s legally defective complaint and the overwhelming evidence as adduced to the record (exhibits in support attached hereto) prove that plaintiff assaulted the defendant-counter-claimant, requiring medical treatment, pain and suffering, and where defendants damages have causation to the Count of Assault as set forth more fully in defendant’s counter claim, entitling the defendant to 5/10 13 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 14 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 an Order of Summary Judgment dismissing plaintiffs complaint in if s entirety, and a further Summary Judgment on count one of defendant’s counter-claim assault and a money judgment in an amount to be determined by a jury a trial, together with court costs and reasonable attorney fees, and any different relief that the Court may determine to be just within it’s jurisdiction. ^Jphn Libertella, H)efendant/Counter-Claimant pro se’ February(^\?2020 6/10 15 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 16 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND PATRICK F. BISOGNO, INDEX NO.: 150281/2013 Plaintiff, vs. DEFENDANT’S AFFIDAVIT JOHN LIBERTELLA and GIOVANNI LIBERTELLA, Defendants. /ss:// DEFENDANT’S AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT 1. That affiant John Libertella, deposes and says: 2. That I am the Defendant/counter-claimant pro se’ in the above captioned matter. 3. That I am of legal age. 4. That I was intentionally assaulted by the Plaintiff Patrick F. Bisogno, 5. That Plaintiff intended to and did cause me physical harm, pain and suffering, requiring medical treatment and further medical treatment during recovery. 6. That the assault took place while I was in an elevator with my father Giovanni Libertella (co-Defendant), who was present and is an eye witness to the altercation. 7. That police were summoned to the scene and they arrested the plaintiff for assault based upon their investigation. 8. That I suffered a contusion to my face, pain, and suffering. 7/10 17 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 GP GP 18 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 9. That at no time did I physically threaten the Plaintiff, or provoke the assault. 10. That the Plaintiff is my ex-wife’s brother in-law and my former brother-in-law. 11. That Plaintiff is also my ex-wifes attorney formerly representing her in a domestic relations matter (divorce) in the Richmond County Family Court. 12. That any statements I made following the assault were and are TRUE! 13. That the statements are alleged to have taken place during a judicial proceeding and are shielded from suit. 14. That Plaintiff testified during deposition that he never sought any medical or psychological treatment following the event of assault when he was arrested. 15. That there are no issue’s of material fact in dispute as to the assault committed against me by the Plaintiff or the insufficiency of Plaintiff charge of slander or defamation per se’ as alleged by the Plaintiff, lacking indispensable elements to sustain the charges and all other counts lack indispensable elements to survive summary judgment, and or are duplicitous and must be dismissed, in an Order of Summary Judgment in favor of the Defendant/Counter claimant. 16. That Plaintiff at no time during instant proceeding put forth an indispensable expert witness to verify his claim of emotional distress. 17. That if I am granted Summary Judgment for assault I will voluntarily withdraw all remaining counts as alleged in my counter-claim, and seek a money judgment for damages, pain 8/10 19 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 20 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 and suffering, to be determined by a jury, together with court costs, and reasonable attorney fees, and any other or different relief as determined by the Court within it jurisdiction. 18. That I state and declare that all facts and averments as set forth in my companion brief are all true and correct to the best of my knowledge and belief, and that the exhibits submitted in support of my motion for Summary Judgment are authentic, and if submitted at trial would constitute evidence and I make this affirmation under the threat of prosecution for perjury for any knowing false statement. fJohn Libertella Affiant Sworn to in my presence on -i ,2020 Me ENA VERM. A iblic • State of New York NO. U1 VE:j349175 Oualiiied in Ness at; County r, Cf ! Oct 17. 2020 9/10 21 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 22 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 CERTIFICATION OF SERVICE That I John Libertella, do hereby certify that I have caused Plaintiff Counsel and co defendant counsel to be served with a true copy of within pleading together with exhibits via U.S. certified mail addressed to their principal office as set forth and addressed below. Addressed To: Counsel for Plaintiff/Defendant 766 Castleton Avenue Staten Island, New York 10310 Counsel for co-Defendant Giovanni Libertella Gladstein Keane & Partners, PLLC 26 Broadway New York, New York 10004 phn Libertella, efendant/Counter-Claimant pro se’ 10/10 23 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 1 24 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 BISOGNO v. LIBERTELLA INDEX NO. 150281 2015 FEBRUARY 7.2020 EXHIBITS FOR SUMMARY JUDGMENT - PLAINTIFF'S AMENDED COMPLAINT - DEFENDANT JOHN LI BERTEL LA'S ANSWER TO AMENDED VERFIED COMPLAINT WITH COUNTERCLAIMS - STATEN ISLAND DA FILE WHICH CONTAINS NYPD ARREST DOCUMENTS,JOHN LIBERTELLA'S MEDICAL RECORDS AND DISTRCT ATTORNEY DOCUMENTS. - PHOTOGRAPH OF DEFENDANT JOHN LIBERTELLA .MAY 9.2013 AT HOSPITAL. - JOHN LIBERTELLA’S MEDICAL RECORDS FROM MEDICAL/HEALTH PROVIDERS DUE TO THE MAY 9,2013 ALTERCATION. -COPY OF DVD OF THE MAY 9.2013 ALTERCATION IN FAMILY COURT .RICHMOND COUNTY STATEN ISLAND.NY. - REPORT ON CELL PHONE RECORDING,RECORDED ON MAY 9,2013,FAMILY COURT 25 HYATT STREET,STATEN ISLAND ,NY. BY PAUL GINSBERG, PRESIDENT , PROFESIONAL AUDIO LABORATORIES.1NC. - COPY OF JUSTIA CASE BISOGNO v. BORSA " DECIDED AND ORDERED ON MARCH 28,2011, SUPREME COURT .RICHMOND COUNTY BY HON. JUDITH N. McMAHON. 25 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 26 of 284 |FILED FILED: : RICHMOND RICHMOND COUNTY COUNTY CLERK CLERK 03/10/2020 0 4 / 0 4 2 018 04:46 0 4 : 0 2 PM PM1 INDEX NO. 150281/2013 / NYSCEF NYSCEF DOC. DOC. NO. NO. 98 186 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2020 04/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ----------- _________.----------------X PATRICK F. BISOGNO, AMENDED VERIFIED Plaintiff, COMPLAINT -against- Index No.: I50281/13 JOHN LIBERTELLA and GIOVANNI Date Purchased: 5/l4/13 LIBERTELLA, Defendants. __________---------.____--------------X Plaintiff his attorneys, BISOGNO & of the by MEYERSON, LLP, complaining Defendañts, respectfully allege, upon information and belief: I. That on May 9, 2013, and at alltimes herein mentioned, Plaintiff was, and stillis,a resident of the County of Richmond, State of New York. Accordingly, jurisdiction and venue are proper in Richrnond County. 2. That this action fallswithin one or more of the exceptions set forth in CPLR §l 602. 3. That on May 9, 2013, and at alltimes herein mentioned, Defendant, JOHN LIBERTELLA, was, and still is,a resident of the County of Nessaü, State of New York. 4. That on May 9, 2013, and at all times herein mentioned, Defendant, GIOVANNI LIBERTELLA was, and stillis,a resident of the County of Nassau, State of New York. 5. Plaintiff is,and was at all timeš mentioned herein, an attorney licensed to practice law in all courts in New York State, and has prâcticed laivin New York for more than twenty three (23) years. 6. As an attorney, Plaintiff has always ccaducted himself honestly and professionally and has never been guilty of any misconduct or malpractice. 27 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 28 of 284 [F ILED FILED: : RICHMOND RICHMOND COUNTY COUNTY CLERK CLERK 03/10/2020 0 4 / 0 4 / 2 018 04:46 0 4 : 02 PM Pl m™^ INDEX ™· NO. ™=/ 150281/2013 "3 NYSCEF NYSCEF DOC. DOC. NO. NO. 98 186 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2020 04/04/2018 7. That on May 9, 2013, Plaintiff was lãwfúlly about the premises known as Richmond County Family Court, located at 25 Hyatt Street, Staten Island, New York, 10301, for judicial proceeding seeking enforcement of a judgment against JOHN LIBERTELLA for failing to pay child support, as ordered by the Court. 8. That on May 9, 2013, Defendants were lawfully about the prerñises known as Richmond County Family Court, located at 25 Hyatt Street, Staten Island, New York, 10301, for judicial proceeding seeking enforcement of a judgment against JOHN LIBERTELLA for failing to pay child support, as ordered by the Court. 9. After the Defendants exited the courtroom, the Court respectfully requested that Plaintiff give Defendant, JOHN LIBERTELLA, his contact information for future proceedings as he was pro se during this proceeding. 10. Plaintiff approached Defendants near the elevator area of the aforementioned . premises to give Defendant, JOHN LIBERTELLA, Plaintiff's contact information. I1. Defendant, JOHN LIBERTELLA, took out his cell phone and began recording Plaintiff seconds after he walked out of the courtroom and mndnned to videotape Plaintiff during the interaction between the above-referenced parties. 12. As Plaintiff began to JOHN his father and Co- speaking Defendant, LIBERTELLA, Defendant, GIOVANNI LIBERTELLA, circled around the Plaintiffs back and began verbally abusiñg Plaintiff, attempting to antagonize Plaintiff while his son and Co-Defendant, JOHN LIBERTELLA, videotaped Plaintiff. 13. Defendant, GIOVANNI LIBERTELLA, in a staged and plan.nal attack began verbally assaulted Plaintiff by ridiculing and mocMng his family, including his mother, children and - 2 29 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 30 of 284 FILED: F ILED : RICHMOND RICHMOND COUNTY COUNTY CLERK CLERK 03/10/2020 0 4 / 0 4 / 2 018 04:46 0 4 : 02 PM PM1 INDEX '"5^ *· NO. '"¹/ 150281/2013 " NYSCEF NYSCEF DOC. DOC. NO. NO. 98 186 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2020 04/04/2018 wife, in an attempt to entice Plaintiff into a physical altercation while JOHN Co-Defendâñt, LIBERTELLA, videotaped Plaintiff. 14. Defeñdâñt, JOHN LIBERETELLA, contiñüed to videotape while he also antagoñized Plaintiff by putting the video camera at or about his facial area and false by making accusations about Plaintiff s role in his divorce and also verbally attempted to entice Plaintiff into a physical altercation so that Defendant may capture iton videotape. 15. While Defendants entered the elevator on the 4th floor they continued to verbally harass and abuse Plaintiff by mocking him, and his family and by placing the camera near his person, until Plaintiff harmlessly waived at the camera and not contacting any part of either Defendants' body. . 16. That on said Defendanta alleged that May 9, 2013, during interaction, Plaintiff, PATRICK F. BISOGNO, assaultad Defendant JOHN LIBERTELLA. Both Defendants began shouting simultaneously that Plaintiff pushed Defendant, GIOVANNI LIBERTELLA, violently and then punched, Defendant, JOHN LIBERTELLA, with a closed fist to the nose. 17. Defendants, in concert, began yelling for help alleging that they were accanited by Plaintiff. Defendants continued to scream this threüghest the crowded floor of the courthouse. Defendants continued to scream that they were accani+ed until the court officers beared down onto the Plaintiff and forcibly removed him from the drea of the Defeñdañts. Defêñdants contiñüed to scream that Plaintiff punched Defcadañt, JOHN LIBERTELLA, and violently pushed, Defandant, GIOVANNI LIBETELLA, and alleged that Plaintiff had done this on a prior occasion to Defandant, JOHN LIBERTELLA. The area was cmwded with people, as well as Plaintiff s peers and fellow attorneys. 3 31 of 284 FILED: RICHMOND COUNTY CLERK 03/10/2020 04:46 PM INDEX NO. 150281/2013 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 03/10/2020 32 of 284 FILED: F ILED : RICHMOND RICHMOND COUNTY COUNTY CLERK CLERK 03/10/2020 04 0 4 2 0 18 04:46 0 4 : 0 2 PM PM '"^ INDEX NO. ™· '™°'*¹³ 150281/2013 / / NYSCEF NYSCEF DOC. DOC. NO. NO. 98 186 RECEIVED