Professional Documents
Culture Documents
COUNTY OF KINGS
_____________________________________________________
DOCKET NO.
ELENA SVENSON, F-28901-08/10B
Petitioner,
-against-
NOTICE OF MOTION
MICHAEL KRICHEVSKY, TO RECUSE
Respondent. Oral argument requested
_____________________________________________________
COUNSELORS:
PLEASE TAKE NOTICE, that upon the annexed affidavit of Michael Krichevsky,
sworn to the day of July, 2010, an upon all the pleadings and proceedings heretofore had
herein, the undersigned will move this Court at Part 27, thereof, to be held at the Courthouse
located at 330 Jay Street, Brooklyn, New York on the 13th day of July, 2010 at 11:00 a.m. in the
For an order by the Court to Recuse himself and order new hearing, and for such other
TAKE FURTHER NOTICE that, pursuant to Section 2214(b) of the Civil Practice Law
and Rules, all answering papers, if any, shall be served at least seven (7) days before the return
date of this motion.
YONATAN LEVORITZ.
Attorney for SVENSON
2306 Coney Island Ave, 2nd Fl
Brooklyn, NY 11223
1FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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-against- AFFIDAVIT
MICHAEL KRICHEVSKY,
Respondent.
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STATE OF NEW YORK)
) SS:
COUNTY OF KINGS )
1. I am the Respondent in this action. I have personal knowledge of the facts set forth herein. I
respectfully submit this affidavit in support of Notice of Motion to Recuse and Order new
hearing.
STATEMENT OF FACTS
2. On October 27, 2008 Petitioner quietly filed fraudulent Petition for Order of Protection
against Respondent forcing him out of his apartment on 4336 Manhattan Ave in Brooklyn,
New York which Petitioner abandoned in summer of 2008 and moved to her apartment at
3. After Police came to arrest Respondent, but missed him Respondent fled this apartment as he
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4. Respondent appeared with his attorney in Kings County Family Court for a hearing on said
order.
5. During said hearing it became obvious that her complaint is sham. Petitioner withdrew said
6. Next, after refusing parties’ private DNA testing proposed by Respondent, Petitioner filed
motion to estop respondent from getting DNA test ordered by the court, and after about 6
month of motion practice withdrew her motion again and undergone said testing.
7. Next, Petitioner filed Objection to Temporary Order of Support and after getting
8. Next, her attorney Yonatan Levoritz served harassing subpoenas and notices to produce
together with notices of depositions upon Sergey Drapkin, Concela Engineering, P.C., Leon
Mandel and Leon Construction. It was done in complete disobedience of Magistrate’s Fasone
order authorizing only subpoenas for Banks. Respondent had no choice, but to file motion to
quash.
9. In response to such abuse of process Respondent’s attorney in this Motion to Quash asked
the court to order Petitioner to pay all costs and attorney’s fee as sanctions against Petitioner
pursuant to NYCRR 130-1.1. That motion was stayed by Magistrate Fasone together with
ARGUMENTS
10. Attorney licensed to practice law in the State of New York must be really bold and sure that
he and his client will not be held in Contempt of Court for above mentioned violation of
court order.
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11. For all this frivolous motions designed to churn fees Mr. Levoritz asked the Court that
12. Mr. Levoritz had to be sure that he will not be ordered to pay Respondent’s legal fees for
such malicious litigation and frivolous motion practice as per 28 USC, § 1927 of
13. This “boldness” lets Respondent believe that Mr. Levoritz knew the outcome even before the
decision was made by Magistrate Fasone - which is in favor of him and Petitioner.
14. Mr. Levoritz, turns out, was right as he was awarded attorneys fees – reward for
15. Magistrate Fasone wrote in his Findings of Fact : ”Moreover, as the Court finds that
respondent-father’s entire behavior in this proceedings has been to delay and to evade any
final determination of his obligations on their merit, both as to paternity and as to child
16. Section 455(a) of 28 U.S.C. provides as follows: Any justice, judge, or magistrate judge
of the United States shall disqualify himself in any proceeding in which his impartiality
17. The Supreme Court recently reaffirmed in Microsoft Corp. v. United States, 530 U. S.
1301, 1302 (2000) (REHNQUIST, C. J.) the standard for interpreting and applying this
section thus: As this Court has stated, what matters under §455(a) “is not the reality of bias or
prejudice but its appearance.” Liteky v. United States, 510 U. S. 540, 548 (1994). This
inquiry is an objective one, made from the perspective of a reasonable observer who is
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informed of all the surrounding facts and circumstances. See ibid; In re Drexel Burnham
18. Respondent, Mr. Krichevsky, reasonably believes that Support Magistrate John Fasone is
19. Petitioner’s Financial Disclosure Affidavit is the only evidence that was produced by her
attorney. This affidavit was mathematically erroneous and Respondent’s attorney pointed out
this fact to Magistrate Fasone during hearing. Her debit and credit could not be reconciled,
yet Magistrate Fasone managed to believe that her “testimony is credible” which is what he
wrote in his Findings of Fact: “As does the Court with respect to her other testimony
regarding her present financial circumstances – i.e. that she presently resides in her parent’s
apartment rent-free and receives cash support from her sister in Germany”. This statement
constitutes Fraud upon The Court with assistance of The Court itself as record shows that she
owns this apartment and Respondent indicated during cross-examination that her sister is on
public assistance in Germany. That is why Respondent’s attorney wanted her address in
Germany so he could send her interrogatories to impeach Petitioner. That is why Magistrate
20. A judge is not a court; he is under law an officer of the court, and he must not engage in
any action to deceive the court. Trans Aero Inc. v. LaFuerga Area Boliviana, 24 F.3d 457 (2nd
Cir. 1994; Bulloch v. United States, 763 F.2d 1115, 1121 (10 Cir. 1985) (fraud upon the
court exists “where judge has not performed his judicial duties”).
21. Mr. Levoritz was not concern with potential malpractice claim against him if after coaching
Petitioner how to perpetrate Fraud upon The Court he loses this case.
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22. During this hearing Mr. Levoritz committed Fraud upon The Court himself by continuously
falsifying facts, acting as expert witness and ejecting himself into testimony breaking “the
23. All his lies found their way into Findings of Fact over my attorney’s objections.
24. Such behavior of Mr. Levoritz would be equivalent of reasonable person coming to casino to
play poker knowing in advance “which card he would get from the dealer” so he can play
25. Magistrate Fasone acted as an advocate for the Petitioner. This sham hearing lasted about six
month. During this time Magistrate Fasone continuously protected Petitioner by obstructing
attorney’s professionalism.
26. Magistrate Fasone denied Respondent’s right to call Petitioner’s sister, Larissa Gaber, as
witness after she was served with witness subpoena in Brooklyn, New York.
27. Magistrate Fasone knew that Petitioner will not survive her deposition by Respondent’s
attorney and that is the reason he stayed discovery before hearing over objection of
Respondent’s attorney.
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A judge shall respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary. A judge shall not
lend the prestige of judicial office to advance the private interests of the judge or others; nor
shall a judge convey or permit others to convey the impression that they are in a special
position to influence the judge
CANON 3 [§100.3]: A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE
IMPARTIALLY AND DILIGENTLY.
Judicial duties in general.
The judicial duties of a judge take precedence over all the judge's other activities. The
judge's judicial duties include all the duties of the judge's office prescribed by law. In the
performance of these duties, the following standards apply.
(B)(l) A judge shall be faithful to the law and maintain professional competence in it.
(3) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers
and others with whom the judge deals in an official capacity, and shall require similar
conduct of lawyers and of staff, court officials and others subject to the judge's direction and
control.
(4) A judge shall perform judicial duties without bias or prejudice against or in favor of any
person. A judge in the performance of judicial duties shall not, by words or conduct, manifest
bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed,
color, sex, sexual orientation, religion, national origin, disability, marital status or
socioeconomic status, and shall require staff, court officials and others subject to the judge's
direction and control to refrain from such words or conduct.
(5) A judge shall require lawyers in proceedings before the judge to refrain from
manifesting, by words or conduct, bias or prejudice based upon age, race, creed,
color, sex, sexual orientation, religion, national origin, disability, marital status or
socioeconomic status, against parties, witnesses, counsel or others.
(6) A judge shall accord to every person who has a legal interest in a proceeding,
or that person's lawyer, the right to be heard according to law. A judge shall not
initiate, permit, or consider ex parte communications, or consider other communications
made to the judge outside the presence of the parties or their lawyers concerning a pending
or impending proceeding, except:
(7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
(D) Disciplinary responsibilities.
(2) A judge who receives information indicating a substantial likelihood that a
lawyer has committed a substantial violation of the Code of Professional
Responsibility shall take appropriate action.
(3) Acts of a judge in the discharge of disciplinary responsibilities are part of a
judge's judicial duties.
(E) Disqualification.
A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to
instances where:
(i) the judge has a personal bias or prejudice concerning a party or
(ii) the judge has personal knowledge of disputed evidentiary facts concerning
the proceeding;
29. Magistrate Fasone showed his bias and prejudice when he commented on the record that
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30. Magistrate Fasone said nothing when Petitioner’s lawyer Mr. Levoritz made
discriminatory statement while defaming Respondent and his employer on the record stating
on Page 70 line 2-7 of October 8, 2009 hearing: “Your Honor, unfortunately, in certain
communities it does happen where non-lawyers actually own law firms, and it’s a lawyer
31. Magistrate Fasone broke Evidence Law by letting Mr. Levoritz admit into evidence stolen
by Petitioner Respondent’s records. To add more insult to the injury those records were never
exchanged.
32. However, stolen and destroyed by Petitioner, and later reproduced by Respondent’s employer
2006 W-2 form that showed $46,000 per year was not admitted into evidence due to double
33. Petitioner told the court that she is not going to work in order to support parties’ 15 year
old teenager child. So, to encourage Petitioner’s lifestyle Magistrate Fasone rewarded her
$627 per month to $2045 without any new evidence that Respondent is actually capable to
34. In total, Magistrate Fasone ordered Respondent to pay Petitioner attorney fees (reward for
fraud upon the court and malicious prosecution), $31,599 in arrears (reward for fraud upon
the court with assistance of the court officer John Fasone himself), and to pay about $700 per
month for health insurance (reward to Petitioner for been in contempt of Support Magistrate
Jennifer Castaldi order that Petitioner enroll parties child into Child Health Plus health plan).
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35. The court forgot to subtract $627 per month from arrears that Respondent was paying from
August of 2009.
36. In total, the court has ordered the Respondent to pay to the Petitioner and her attorney the
sum of about $52,000 plus about $2700 monthly. During the trial no evidence was presented
by either the Respondent nor the Petitioner that the Respondent had that kind of money. In
fact the records showed that the Respondent had $1700 in his checking account.
37. In it's order the Court makes no findings that the Respondent lied to the court about his cash
assets or any statement as to how the Court determined that the Respondent had much more
cash than either party alleged. If the Court is to let stand its Order then justice demands that
the Court state how it came to the conclusion that the Respondent is able to comply with the
38. The Respondent has made attempt to give the Court the opportunity to either fix it’s error of
ordering the Respondent to do the impossible or to at least explain it’s reasoning in his
Objection to Final order of Support sent to Judge Paula Hepner. She has refused to do so.
39. With a lack of evidence from either side indicating that the Respondent has this money, the
Court is duty bound to make a finding as to how it concluded that the Respondent has the
ability to pay this sum of money. If the Court refuses to make this finding then it can only be
concluded by reasonable observer that it is the intention of the Court to deliberately drive the
Respondent into financial ruin and bankruptcy, which is what happening right now with
40. At this point, Your Honor, it has clearly been pointed out to the Court in a manner that any
reasonable observer can understand, that it's Decision is Impossible. That the Court has made
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obvious errors that is apparent to any reasonable observer. These obvious errors were brought
to the attention of the Court and were deliberately ignored. In fact, if this errors is not
corrected ASAP, Respondent will conclude that Magistrate Fasone is trying to deceive the
Court and Respondent by stating in his Findings of Fact: “The factors used in calculating the
basic payment for Adjusted Gross Income over $130,000 is/are: The financial resources of
the custodial and non-custodial parent..”. As per record Respondent had $1700 in cash and
non-custodial parent income of $52,000 per year as per Respondent’s 2009 W-2 form, and it
is unclear where this $130,000 number comes from if Petitioners’ income is ZIRO.
Magistrate Fasone continues: “The non-custodial parties’ pro rata share of basic child support
41. In April 22, 2010 Respondent filed Petition to Modify his child support due to the fact
that he lost his job. The hearing was adjourned by Magistrate Fasone from May 18 to August
6 over Respondent’s Objection. Petitioner’s reason for such a long adjournment period was
the argument that her attorney Mr. Levoritz has “celebrity status and is already booked for
the summer”. In reality this is just another dirty lawyer’s trick to deny Respondent due
42. However, he was immediately available after Respondent filed Petition for Custody and
appeared on June 14, 2010, June 18, 2010, June 30, 2010, and now is scheduled to appear on
July 28, 2010 in Part 52 of Family Court. More over, on June 30, 2010 he served Respondent
with Summons for Violation of Court Order. Yes, no brainer, Respondent violated the very
same order that is impossible to comply with. Respondent understands that Petitioner is
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43. The appearance is scheduled for July 13. This date is not incidental. Respondent believes
and statistics proves that he will not get a fair hearing by Support Magistrate Fasone.
44. “Fraud upon the Court” makes void the orders and judgments of that court. The U.S.
Supreme Court has consistently held that a void order is void at all times, does not have to be
reversed or vacated by a judge, can not be made valid by any judge. The order is void ab
initio. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920).
Particularly when “a judge himself is a party to the fraud,” Cone v. Harris (Okl. 1924), 230 P.
45. A Judge who stands in the way of justice and the law is acting outside of all judicial
authority, lacks jurisdiction and thereby waives his rights to immunity from civil liability.
The 14th Amendment guarantees the fundamental rights of People to Due Process and such
rights require strict scrutiny of the Court. The Respondent therefore puts the Court on notice
that the Respondent intends to defend his rights and to hold the Court liable for acts the Court
takes against the Respondent that are done in the absence of judicial authority and
jurisdiction.
46. Respondent also puts the court on notice that if the court refuses to recuse himself
Respondent will have no choice but to file complaint with New York State Commission on
Judicial Conduct and publish whole case on the World Wide Web.
Wherefore, in light of the fact that Magistrate Fasone did not perform his duty as mandated by
the Constitution and the Law Respondent respectfully moves the Court to Recuse himself and
X________________________________
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MICHAEL KRICHEVSKY
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