CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF KINGS
INDEX NO. 056717/13
NEW CENTURY FINANTIAL SERVICES, INC.,
Pl a i nt i f f s ,
-against-
Michael Krichevsky,,
Defendant.
Michael Krichevsky,
Third Party Pl ai nt i f f ,
-against-
John Fasone, Yonatan Levoritz, Esq., Vi ct or Katkalov, KINGS
COUNTY CHILD SUPPORT COLLECTION UNIT, Elena
Svenson,
Third Partv Defendants.
OBJECTION TO ATTORNEY'S TESTIMONY AND REPLY TO MOTION TO DISMISS
BY HRA/C SCL!
STATE OF NEW YORK ss.:
COUNTY OF KINGS
MICHAEL KRICHEVSKY, PRO SE, being dul y sworn, deposes and says:
1. That I am the third-party pl a i nt i f f in t hi s action and the facts stated in this affidavit are
within my personal first-hand knowledge, and if cal l ed on as a witness, I could competently testify-
thereto.
2. I make t hi s Reply to the affi rmat i on HRA/CSCU motion to dismiss.
3. In Howled v. Rose, 496 US 356 - Supreme Court (1990) the court stated:
''Federal law is enforceabl e in state courts not because Congress has determined
that federal courts would otherwise be burdened or that state courts might provide a
more convenient f orum although both mi ght well be true but because the
Constitution and laws passed pursuant to it are as much laws in the States as laws
passed by the state l egi sl at ure. The Supremacy Clause makes those laws "the
supreme Law of the Land." and charges state courts with a coordinate responsibility
to enforce that law according to their regular modes of procedure. "The laws of the
United States are laws in the several States, and just as much binding on the citizens
and courts thereof as the State laws are. The two together form one system of
jurisprudence, which constitutes the law of the land for the State; and the courts of
the two jurisdictions are not foreign to each other, nor to be treated by each other as
such, but as courts of the same country, having jurisdiction partly different and
partly concurrent." Claflin v. Houseman, 93 U. S. 130, 136-137 (1876); see
Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 222 (1916)
4. In Trinsey v. Pagliaro, 229 F. Supp. 647 - Dist. Court, ED Pennsylvania (1964) the court
stated:
"The defendants' motion to dismiss for failure to state a claim unsupported by
affidavits or depositions is incomplete because it requests this Court to consider
facts outside the record which have not been presented in the form required by
Rules ... Statements of counsel in their briefs or argument while enlightening to the
Court are not sufficient for purposes of granting a motion to dismiss or summary
judgment."
5. Therefore, I will say that this motion is GOVERNMENT' S ATTORNEY FRAUD UPON
THE COURT BY OFFICER OF THE COURT - Mrs. Gladys Egwuonwu, Esq.(Thereafter,
Government's Attorney).
6. Government' s attorney did not say in her affirmation that prior to filing this motion she
contacted me in good faith to resolve the issues raised herein. She didn' t contact me for the fear of
losing her job by quickly and inexpensively settling the issues. This fact proves the averments in
my complaint that government employees do not want the peace and harmony in families - but
want parents to perpetually appeal and litigate with the government so that Government Attorney
can have a job - litigation.
7. In regard to ^ [ 3, it is intentionally misleading because Government' s Attorney is not
competent to testify - counsel is testifying about matters beyond her personal knowledge and
therefore lacks competence to testify.
8. She intentionally misleads the court by statement that Fasone ordered me to pay $627 per
month through CSCU. Thi s is not what I'm sui ng him for - therefore this fact is not relevant to this
motion. However, she is not ment i oni ng the ul t i mat e facts for what I sue Fasone. I sue him. inter
alia, for fraud upon the court in that he 'corrupted the truth seeking function of the court' and
ordered me to pay $2045 per month - more t han 1 \vas able to pay, thereafter denied me a review
for an error, refused to recuse himself and attempted to j ai l me. These acts availed his employer -
the State of New York - to immediately ent er my name in "deadbeat father list" in order to collect
Federal title IV-D funding. Thereafter, CSCU confiscated all my funds and unemployment
insurance proceeds without due process of law in violation of FDCPA - which is unlawful
conduct. She did not mention that I had $ 150 in my checking account, which I was going to pay for
court filing fees for my appeal. She did not ment i on that t hi s account was confiscated by CSCU
without due process, thereby sabotaging my efforts to appeal to Supreme Court's 2nd Department.
9. She is testifying about my charge account with Citibank and the amounts owned by me to
them - $3081.17, which she did not personally witness or verified the validity of debt. She is
testifying that "this amount is now due and owning the pl ai nt i ff. However, she intentionally
disregards to address my averments in my answer and the complaint.
10. About the 1 4 of the affirmation, attorney wants to dismiss my case because I did not
properly name the party to the suit. Apparent l y, she pretends to be unaware that 1 have a right to
j oin additional party after discovery or amend the caption of my complaint. She pretends to be
unaware that she and I, in good faith, can stipulate to any amendment. Therefore this argument is
frivolous, deceiving and an attempt to commit the fraud upon the court by officer of the court. In
McNully v. United States, 483 US 350 - Supreme Court (1987) the court stated: "Fraud in its
elementary common law sense of deceit and this is one of the meanings that fraud bears in the
statute, see United States \.Dial, 757 F. 2d 163, 168 (7th Cir. 1985) includes the deliberate
concealment of material i nformati on in a setting of fiduciary obligation. A public official is a
fiduciary toward the public, i ncl udi ng, in the case of a judge, the litigants who appear before him,
and if he deliberately conceals material i nformati on from them he is guilty of fraud."
11. She is arguing that government's officers or employees, such as her, are i mmune from the
cri mi nal liability and/or torts. Last ti me 1 checked when that was true -it was in Nazi Germany.
Accordingly, that statement is an admission to the averments of my complaint. Additionally,
please see 1 22 of this affidavit.
12. About f I f 5, 6 Government's Attorney pretends to be unaware that she has a right to
remove or transfer this case to the Supreme Court or even federal court under title 42 666 by
stipulation of the parties or motion. I s that the reason to dismiss the case with prejudice?
13. As I stated before, due to a CSCU confiscation of all my funds, my constitutional right to
redress of grievances was sabotaged and denied by CSCU and other defendants in concert.
Moreover, my application for the poor person status was denied by Supreme Court's 2d
Department. Besides, filing article 78 proceedings would have been futile because other fathers
and mothers tried that route in prior cases -to no avai l.
14. About I f 7, the argument is frivolous and logically fallacious. Government's Attorney is
falsely and misleadingly testifying that 1 never challenged the validity of Fasone's child support
order in Family Court and/or 1 never came to CSCU office to redress my grievances amicably.
15. About I f I f 8 - 10, Government's Attorney i ntenti onally and consistently using logical
fallacy to railroad me. Tortuous interference with contract is a common law cause of action. There
is no requirement that I have a written contract with CSCU or any contract with CSCU at all.
However, I do have i mpli ed and express contract wi th New York State and its subsidiaries by
virtue to be a taxpayer and member of the publ i c , whose ri ght s t hi s government has a duty to
protect. Do I have a contract with CSCU i f in t hei r correspondence to me they cal l me
CUSTOMER? Are they not being paid by me. taxpayer, for serving me Justice? I would like to
remind Government's attorney about United States Supreme Court rul ing:
"It is the duty of courts to be watchful for the constitutional rights of the citizen, and
against any steal thy encroachments thereon."; "It may be that it is the obnoxious
thing in its mi l dest and least r epul si ve form; but i l l egi t i mat e and unconstitutional
practices get their lirst footing in t hat way, namel y, by sil ent approaches and slight
deviations from legal modes of procedure." Boyd v. United States, 116 US 616 -
Supreme Court (1886)
16. Also, read Corpus J ur i s Secundum (CIS). Vol ume 7. Section 4. Attorney & client:
"The attorney's first duty is to the courts and the publ ic, not to the client, and
wherever the duties to his cl i ent confl i ct wi t h those he owes as an officer of the
court in the administration of justice, the former must yiel d to the latter.
63C Am.Jur.2d, Publ i c Officers and Employees
63C Am.Jur.2d, Publ ic Officers and Employees, 247 "As expressed otherwise, the
powers delegated to a publ i c officer are held in t rust for the people and are to be exercised
on behalf of the government or of all citizens who may need the intervention of the officer.
[ 1] Furthermore, the view has been expressed that all publ i c officers, wi t hi n whatever
branch and whatever level of government, and whatever be their private vocations, are
trustees of the people, and accordingl y labor under every disabil ity and prohibition
imposed by law upon trustees rel at i ve to the making of personal financial gain from a
discharge of their trusts.
[2] That is, a publ ic officer occupies a fiduciary rel ationship to the political entity on whose
behalf he or she serves.
[3] and owes a fiduciary dut y to the publ i c .
[4] It has been said that the f iduciar y r esponsibilities of a public of f icer cannot be less than
those of a private individual.
[5] Furthermore, it has been stated that any enterprise undertaken by the public official who
tends to weaken pu bl i c confidence and under mine the sense of security for individual
rights is against public policy. Fraud in its elementary common law sense of deceit-and this
is one of the meanings that fraud bears [483 U.S. 372] in the statute.
Officer of the Cour t
"any person who has an obligation to promote j ustice and effective operation of the j udicial
system, including judges, the attorneys who appear in court, bailiffs, clerks, and other
personnel. As officers of the court lawyer s have an absolute ethical duty to tell judges the
truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client
is not appearing, the location of documents and other matters related to conduct of the
courts."
17. Government's Attorney is citing case Rovello v. Orofino Realty Co., 40 NY 2d 633. She is
arguing that, "'the court will grant the motion to dismiss pursuant to CPLR 3211, if in light of the
complaint and the evidentiar y materials submitted, including affidavits and exhibits, the petitioner
has failed to State a cause of action." It is blatant fabrication of facts and misrepresentation of the
law. This case is actually helping me against her motion to dismiss and I quote:
"Under modern pleading theory, a complaint should not be dismissed on a pleading
motion so long as, when the plaintif f is given the benefit of every possible favorable
inference, a cause of action exists. Here, given the complaint and the affidavits,
there is a reasonable chance, even if some think it small, that plaintiff purchaser
will ultimately prevail on the merits. Although absent further evidence, the dispute
may be f inally resolved on the more embr acive and exploratory motion for
summary j udgment, disposition by su mmar y dismissal under CPLR 3211 (subd [a],
par 7), is premature.""
"On the other hand, af f idavits may be used freely to preserve inar tf ully pleaded, but
potentially meritorious, claims (see, 636*636 e.g.. Kelly v Bank of Buffalo, 32
AD2d yi5\,Raimondi v Fedeli. 30 AD2d 802). Modern pleading rules are "designed
to focus attention on whether the pleader has a cause of action rather than on
whether he has properly stated one" (6 Carmody-Wait, 2d, NY Prac, 38:19:
see Kelly v Bank of Buffalo. 32 AD2d 875. supra). In sum, in instances in which a
motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a
summary j udgment motion, affidavits may be received for a l i mi t ed purpose only,
serving nor mal l y to remedy defects in the complaint"
18. Shame on you Government' s attorney - you attempted to mislead the court.
19. In regards to Government' s attorney E x hi bi t A, she did not say what this ''documentary
evidence" is used to prove, or how this is concl usi ve for this motion. What factual issues in my
complaint this ex hi bi t resolves? Yet another evidence of Government's attempts to mislead the
court and deny a remedy to me.
20. In AG CAPITAL v. Stale St. Bank. 842 I MF 2d 471 - NY Court of Appeals (2005) the court
clearly stated:
"In order to prevail on a motion to dismiss on the basis of documentary evidence
(CPLR 3211 [a|[l ]). the admi ssi bl e document s must conclusively resolve factual
issues raised in the pleadings in favor of the movi ng party"
21. However, I reserve the right to depose Government ' s Attorney and Svetlana Gurevich as
witnesses per CPLR 3211 (d) in order to move to the summary judgment stage if she wants.
22. About 1j 1L the Clearfield Trust Doctrine states:
"Governments descend to the level of a mere pr i vat e corporation, and take on the
characteristics of a mere private citizen...where private corporate commercial paper
[Federal Reserve Notes] and securities [checks/ is concerned. ... F or purposes of
suit, such corporations and i ndi vi dual s are regarded as entities entirely separate
from government." Clearfield Trust Co. v. United States, 318 U.S. 363-371 (1942)
"When governments enter the world of commerce, they are subject to the same
burdens as any private fi rm or corporation" U.S. v. Burr, 309 U.S. 242
23. What the Clearfield Trust Doctrine is sayi ng is that when private commercial paper is used
by corporate government, then Government loses its sovereignty status and becomes no di fferent
than a mere private corporation. As such, government (or in my case a family court and CSCU)
then becomes bound by the rules and laws that govern private corporations. As such, by law I'm
allowed by law to pierce coiporate veil and go i n d i v i d u a l l y after officers.
24. Even if, which is not admitted and onl y for the sake of argument, defendants did not owe
me any dut y they are still l i abl e as third-party common law defendants who tortuously breached
the contract. Therefore, the third-party compl ai nt is appropriate and CPLR section 1007 argument
is logical fallacy, attempt to mislead the court , and therefore frivol ous. Moreover, the question of
contract and dut y is a matter of fact and law for the j ury to decide.
25. Moreover, Government's attorney failed to rebut averments made in each of these
kangaroo court proceedings that I mentioned in my compl ai nt , and therefore they are admitted per
Kuehne & Nagel v. Bait/en, 36 NY 2d 539 - NY Court of Appeals (1975) where the court stated:
"Facts appearing in the movant' s papers which the opposing party does not
controvert, may be deemed to be admitted"
26. "Whenever any officer of the court commi t s fraud during a proceeding in the court, he/she
is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir.
1985), the court stated:
"Fraud upon the court is fraud whi ch is directed to the j udi ci al machinery itself and
is not fraud between the parties or f raudul ent documents, false statements or
perjury. . . . It is where the court or a member is corrupted or influenced or influence
is attempted or where the judge has not performed his j udi ci al function thus
where the i mpart i al functions of the court have been directly corrupted."
27. "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to
"embrace that species of fraud wh i c h does, or attempts to. defile the court itself, or is a fraud
perpetrated by officers of the court so that the j udi ci al machinery cannot perform in the usual
manner its impartial task of adjudging cases that are presented for adjudication." Kenncr v. C.I.R..
387 F.3d 689 (1968); 7 Moore's Federal Practice. 2d ed., p. 512, f60.23.
28. The 7th Circuit further stated, "a decision produced by fraud upon the court is not in
essence a decision at all. and never becomes final."
29. In People v. Zajic, 88 Il l .App.3d 477, 410 N.E.2d 626 (1980) the court stated that A j udg e
is an offi cer of the court, as well as are all attorneys. A state j udge is a state j udi ci al officer, paid by
the State to act i mparti al l y and l awf ul l y. A federal j udge is a federal j udi ci al offi cer, paid by the
federal government to act i mparti ally and l awf ul l y. State and federal attorneys fall into the same
genera] category and must meet the same requi rements.
30. Government's attorney asked to di smi ss my ease per CPLR 321 l(a)(5), but does not
particularly state on what ground, and therefore I cannot address it.
CONCLUSION
31. As can be seen from t hi s motion. Government's Attorney is covering up all wrongdoings
by defendants i ncl udi ng her own, who can only flourish by maki ng my life miserable. For about 6
years defendants turned my fatherhood into my curse - where I am damned if I pay child support
and I am damned if I don't.
WHEREFORE, it is respectfully requested that:
thi s moti on be denied in its enti rety.
court provi de other and f ur t her remedy as to this Court seems just and proper,
i ncl udi ng the costs of this moti on.
X
Mi chael Kri chevsky, Pro Se
Sworn to before me this
//th day of Apri l 2014
NOTARY PUBLIC
MIKHAIL SHALMIYEV
NOTARY PUBLIC, State of New York
No.01SH6229130
Qualified in Kings County
Commission Expires Oct.4, 2014