Bertoglio told police he then left, and Bommarito approached him in the parking lot. Bertoglio said he and Bommarito struggled on the ground, and, at some point, Bommarito stood up and, while standing over him, fired a 9 mm pistol at him.

Police noted Bertoglio had not been shot, but did have a “small laceration” to the bottom of his chin and refused medical treatment.

Bertoglio’s attorney, Matthew Vianello of Jacobson Press & Fields, said his client was on the ground and turned his head to the left when Bommarito fired. The gunshot grazed Bertoglio, and struck the concrete on the ground next to him, leaving him unable to hear for several days, the lawsuit alleges.

The lawsuit also says Bommarito had previously been banned from the Eat-Rite Diner for harassing other customers and loudly referring to a mentally disabled diner employee as “retarded.”

“Whether it is through Mr. Bommarito’s bad aim or otherwise, my client’s still alive,” Vianello said. “It was a scary situation for him. He was in shock at the time and still is in shock.”

In a letter to James Bommarito and his attorneys in January, Vianello asked him for $1 million.