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UNITED STATES BANKRUPTCY COURT RETURN DATE: October 4, 2013 EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x IN THE MATTER

OF: ELENA SVENSON, CASE NO. 1-12-43050-ess Debtor. CHAPTER 7 --------------------------------------------------------x MICHAEL KRICHEVSKY, Plaintiff/Creditor, v. ELENA SVENSON, Adversary Proceeding No. 12-01229-ess Defendant/debtor, BOARD OF MANAGERS OF OCEANA CONDOMINIUM NO. TWO; INTERNAL REVENUE SERVICE, INC., Defendants/Creditors, VICTORIA EDELSTEIN, DDS; BORIS KOTLYAR, COOPER SQUARE REALTY, INC; LANA KAPLUN, personally; FARID BADALOV, personally; BORIS MEYDID, personally; JOHN DOE and JANE JOHNS, personally (fictitious names to be discovered), Defendants. ------------------------------------------------------------------x VICTORIA EDELSTEIN, DDS and BORIS KOTLYAR, Cross-Claimants, v. MICHAEL KRICHEVSKY, Cross-Defendant. -----------------------------------------------------------------x NOTICE OF MOTION TO DISMISS COUNTERCLAIM COUNSELORS: PLEASE TAKE NOTICE, that upon the annexed supporting affidavit and memorandum of law, Michael Krichevsky moves for an order to dismiss counterclaim of Elena Svenson (SVENSON), in this action on the following grounds: a) lack of subject matter jurisdiction; b) insufficient process;

c) insufficient service of process under F.R.C.P. rule 5; d) failure to state a claim upon which relief can be granted per F.R.C.P. rule 12(b) (6); and e) failure to join a party under F.R.C.P. rules 13 and 19. The hearing will be held by Bankruptcy Judge Honorable Elizabeth S. Stong of this Court at the Courthouse located at 271 Cadman Plaza East, at Courtroom 3585, Brooklyn, NY 11201, on the 4th day of October, 2013, at 3:00 PM of that day, or as soon thereafter as counsel can be heard; and for such other and further relief as to this Court seems just and proper. TAKE FURTHER NOTICE that, pursuant to FRCP, all answering papers, if any, shall be served at least seven (7) days before the return date of this motion.

Dated: September 17, 2013 Brooklyn, New York ______________________________ Michael Krichevsky, Pro Se 4221 Atlantic Ave Brooklyn, New York 11224 (718) 687-2300 tokrichevsky1@yahoo.com

UNITED STATES BANKRUPTCY COURT RETURN DATE: October 4, 2013 EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x IN THE MATTER OF: ELENA SVENSON, CASE NO. 1-12-43050-ess Debtor. CHAPTER 7 --------------------------------------------------------x MICHAEL KRICHEVSKY, Plaintiff/Creditor, v. ELENA SVENSON, Adversary Proceeding No. 12-01229-ess Defendant/debtor, BOARD OF MANAGERS OF OCEANA CONDOMINIUM NO. TWO; INTERNAL REVENUE SERVICE, INC., Defendants/Creditors, VICTORIA EDELSTEIN, DDS; BORIS KOTLYAR, COOPER SQUARE REALTY, INC; LANA KAPLUN, personally; FARID BADALOV, personally; BORIS MEYDID, personally; JOHN DOE and JANE JOHNS, personally (fictitious names to be discovered), Defendants. ------------------------------------------------------------------x VICTORIA EDELSTEIN, DDS and BORIS KOTLYAR, Cross-Claimants, v. MICHAEL KRICHEVSKY, Cross-Defendant. -----------------------------------------------------------------x AFFIDAVIT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS MICHAEL KRICHEVSKY, Pro Se, under penalty of perjury says: 1. I am the plaintiff (KRICHEVSKY) in the within action. 2. I make this affidavit in support of my motion to dismiss counterclaim of defendant Elena Svenson (SVENSON). 3. The facts stated in this affidavit are within my personal knowledge, and if called on as a witness, I could competently testify thereto.

SUMMARY OF THE LITIGATION LEADING TO CROSSCLAIM 4. On May 17, 2013, Ms. LaMotte filed her motion to dismiss SECOND AMENDED COMPLAINT (docket number 79). 5. In reply, KRICHEVSKY served on SVENSON the THIRD AMENDED COMPLAINT. Due to objection, KRICHEVSKY filed the motion for leave to replead which was granted. The court issued its order for SVENSON to address the THIRD AMENDED COMPLAINT by motion or answer, which must be served on KRICHEVSKY as to be received by August 28, 2013. COUNTERCLAIM MUST BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION 6. That this Court lacks subject-matter jurisdiction over the issues rose herein. This court can only adjudicate controversy between the parties. SVENSON, however, did not suffer any redressable harm because: 7. IRS lien on the UNIT is due to her willful nonpayment of personal income tax; 8. OCEANAs lien on the UNIT is due to the fraudulent lease to EDELSTEIN and KOTLYAR, which hindered sale of the unit, as well as due to her willful nonpayment of common charges while she was receiving rent from EDELSTEIN and KOTLYAR; and 9. due to statute of frauds, she cannot allege and/or prove that Upon information and belief, Plaintiff stated that the purpose of the home equity loan was to satisfy the tax lien on the property as per 127 of her counterclaim for accounting. 10. Additionally, the allegations in 132 and 135 of her counterclaims are false, because KRICHEVSKY released SVENSON from the mortgage on the UNIT and, therefore, she has no creditors except KRICHEVSKY. Additionally, due to her tortuous conducts toward

KRICHEVSKY and the UNIT it lost its equity and, therefore, SVENSON lost, or waived, or abandoned her alleged equity share in the UNIT, if any. COUNTERCLAIM MUST BE DISMISSED FOR INSUFFICIENT PROCESS 11. Ms. LaMotte mailed counterclaim on August 28, 2013 and KRICHEVSKY received it on August 29, 2013, one day late contrary the courts order, Exhibit A. Additionally, counterclaim does not have summons as per F.R.C.P. rule 4. COUNTERCLAIM MUST BE DISMISSED FOR INSUFFICIENT SERVICE OF PROCESS 12. KRICHEVSKY incorporates averments above by reference herein. 13. According to F.R.C.P. rule 5 defendant SVENSON served KRICHEVSKY using rule 5(C) service of process by mail but failed to serve him in accordance with this courts order so as to be received by August 28, 2013. Accordingly, this service must be quashed as untimely. COUNTERCLAIM MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 14. The counterclaims in its entirety, and each cause of action contained therein, fail to state a cause of action upon which relief can be granted. 15. To State a claim for accounting SVENSON must allege per Kastle v. Steibel, 120 AD 2d 868 - NY: Appellate Div., 3rd Dept. (1986): 16. relations of a mutual and confidential nature; 17. money or property entrusted to the defendant imposing a fiduciary duty; 18. no adequate legal remedy; and 19. in some cases, a demand for an accounting and a refusal. 20. SVENSON, however, failed to do so.

21. To establish a claim for conversion SVENSON must plead with level of specificity, which her attorney Ms. LaMotte used to dismiss KRICHEVSKYs claims for fraud against SVENSON and demonstrate per IN RE STAMOU, Bankr. Court, ED New York (2013) that she: 22. had an immediate superior right of possession; 23. to the identifiable fund; 24. the exercise by defendant of unauthorized dominion over the money in question; 25. to the exclusion of her rights. 26. SVENSONs attorney failed to do so. COUNTERCLAIM MUST BE DISMISSED FOR FAILURE TO JOIN A NECESSARY PARTY 27. SVENSON have failed to join a necessary parties, and this Court should not proceed in the absence of said parties as per F.R.C.P rule 19 Required Joinder of Parties, which states: (a) Persons Required to Be Joint if Feasible (1) Required Party. A party who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if: (A) in that persons absence, the court cannot accord complete relief among existing parties. 28. F.R.C.P. rule 13(a) Compulsory Counterclaim states: (1) In General. A pleading must state as a counterclaim any claim that at the time of the service the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing partys claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. 29. Because this court released all defendants from the underlying claims of KRICHEVSKY, it cannot bring them back for SVENSONs counterclaim and cross-claim unless it sua sponte

declares a mistake and voids its order to abstain. 30. Further, F.R.C.P. in rule 13(g) Crossclaim Against a Coparty states: A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. 31. All of the below mentioned defendants are necessary parties to the counterclaim. KRICHEVSKY assumes that Ms. LaMotte secured her clients (SVENSON) informed decision before acting or refraining from the action in this proceeding. During the whole year SVENSONs attorney, Ms. LaMotte, spent considerable amount of time and effort organizing, conciliating, conspiring and holding concilium with opposing her brethren lawyers: 32. now disqualified, Mr. Losardo from BELKIN BURDEN WENIG & GOLDMAN, LLP (BELKIN), who unlawfully represented defendants OCEANA, COOPER, LANA KAPLUN, FARID BADALOV and BORIS MEYDID in this court; 33. with later substituting BELKIN Mr. Margolis from ABRAMS GURFINKEL MARGOLIS GERSON, LLP (ABRAMS), who continued unlawful representation of above mentioned defendants in this court; 34. Mr. Ganc, who represented defendants EDELSTEIN and KOTLYAR in this court. 35. Upon my information and belief, the goal of this conspiracy was brainstorming as to how effectively, in concert harass KRICHEVSKY, abstract Justice, hinder access to the court and dismiss KRICHEVSKYs lawsuit by misleading the court, or how to use some technicality in procedure to trip up KRICHEVSKY over it. 36. In the instant situation, above-mentioned necessary parties to this counterclaim were already

joined by KRICHEVSKY using doctrine of joint and several liabilities. However, Ms. LaMotte strategically waived her clients crossclaims against them during this almost year litigation about amending KRICHEVSKYs pleading by failing to plead crossclaims against above-mentioned defendants even though the numerous opportunities existed. For example, during the courts order to show cause as to why the court should not abstain from jurisdiction over above-mentioned defendants, Ms. LaMotte never objected to abstention. During this almost six-month duration of minitrial on that issue, KRICHEVSKY 2 times argued in his pleadings and open court against abstention and explained the doctrine of joint and several liabilities. He also argued that he consolidated all claims from several state courts under umbrella of this court for the purpose of judicial economy and simplicity of issues to be resolved. Additionally, KRICHEVSKY warned the parties that abstention would create all sorts of confusion. Ms. LaMotte was present during this whole minitrial and was silent regarding releasing above-mentioned defendants from this action. As a result, abovementioned defendants were released by courts order and defendant SVENSON was ordered to address KRICHEVSKYs THIRD AMENDED COMPLAINT while ignoring claims and paragraphs concerning above-mentioned defendants. 37. Now we have a situation, which for lack of better persuasive expression, can only be described as sh*t hit the fan. 38. Alternatively, Ms. LaMotte is not competent or corrupt attorney, who committed legal malpractice against her client and tries to mislead the court and make KRICHEVSKY be her surety. 39. Further alternatively, Ms. LaMotte had conflict of interest and sold short her clients best interest to the above-mentioned defendants by not asserting the crossclaims against them in

exchange for them not going personally after her, but going only after the UNIT. 40. If this court upholds SVENSONs counterclaim, KRICHEVSKY, due to the above mentioned in 24, 25 attorneys misconduct, demands that Ms. LaMotte be joined to this counterclaim as necessary party (cross-defendant or third-party defendant) to contribute and/or indemnify KRICHEVSKY. 41. SVENSONs prior attorneys Yoram Nachimovsky, Nicholas Ratush and Yonatan Levoritz are also necessary parties because they all advised, represented, aided and abated her actions and inactions arising under transactions and controversies involving KRICHEVSKY and the UNIT. KRICHEVSKY timely notified Ms. LaMotte that statute of limitation on legal malpractice actions against them is running out soon. This is, quite possibly, another legal malpractice committed by Ms. LaMotte against SVENSON and the UNIT by not joining above-mentioned persons to this counterclaim or the action as third-party defendants. 42. KRICHEVSKY predicts that this affidavit in the motion to dismiss will not be rebutted point for point by any sworn statement under penalty of perjury neither from SVENSON, nor from Ms. LaMotte. It will be done in order to avoid creation of any paper trail in evidence of her misconduct. KRICHEVSKY further predicts that Ms. LaMotte will attempt to use every logical fallacy known to lawyers to avoid straight rebuttal of every point that KRICHEVSKY made in his affidavit. In such situation KRICHEVSKY moves this Hon. court to take judicial notice of legal Maxim SILENCE IS ACQUIESCENCE on which F.R.C.P. rule 8(6) failure to deny is an admission based. Therefore, whichever point in KRICHEVSKYs affidavit will not be rebutted, the court should take it as a fact that is admitted in evidence. CONCLUSION 43. Each of the above made arguments is sufficient to dismiss cross-claim. And taking this

motion as whole, there is a compelling reason to dismiss cross-claim of SVENSON. WHEREFORE, the plaintiff respectfully requests judgment dismissing the cross-claim, and for such other and further relief as to this Court may seem just and proper. I, Michael Krichevsky, Pro Se, pursuant to 28 U.S.C. 1746, under penalty of perjury declare that the foregoing is true and correct. Dated: September 17, 2013 Brooklyn, New York ______________________________ Michael Krichevsky, Pro Se 4221 Atlantic Ave Brooklyn, New York 11224 (718) 687-2300 tokrichevsky1@yahoo.com

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