SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________________________________________________ MICHAEL KRICHEVSKY, Plaintiff, -againstYONATAN LEVORITZ, ESQ,

YORAM NACHIMOVSKY, ESQ, ELENA SVENSON, Defendants. _____________________________________________________

INDEX NO. 24714/10 FIRST JUDICIAL NOTICE

JUDICIAL NOTICE REGARDING ACTS AND FAILURE TO ACT BY LAW FIRM L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P., ITS ATTORNEYS AND NICHOLAS RATUSH, ESQ. "...ours is a sick profession marked by incompetence, lack of training, misconduct and bad manners. Ineptness, bungling, malpractice and bad ethics can be observed in court houses all over this country every day.....these incompetents have a seeming unawareness of the fundamental ethics of the profession." Chief Justice Warren Burger

STATE OF NEW YORK COUNTY OF KINGS

ss.:

Michael Krichevsky, Pro Se, pursuant to 28 U.S.C. 1746, under penalty of perjury, declares and files request for Judicial Notice: 1. I have firsthand knowledge of the facts and matters herein referred to by me except where indicated to be on information and belief and where so stated I verily believe them to be true. 2. By this request The Honorable Court is respectfully requested to take Judicial Notice of the undisputable facts, unrebutted allegations and presumptions; undisputable acts or failure to act by the defendants attorneys in violation of Constitution, Common Law and New York Rules of Professional Conduct with Commentaries.

3. All of the defendants failed to rebut every allegation in the Plaintiffs complaint and motions to dismiss filed by L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. and Nickolas Ratush, Esq. is not responsive pleading. 4. The Honorable Court is respectfully requested to take Judicial Notice of the undisputable common law rule and CPLR that unrebutted allegations in the complaint or affidavit of Plaintiff stand as true facts. MANDATORY SELF DISQUALIFICATION OF THE FIRM L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. DEFENDING LEVORITZ 5. Sometime in November-December of 2010, plaintiff realized that law firm L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. defending Mr. Levoritz has a conflict of interest in representing Mr. Levoritz against him. 6. Plaintiff called Miss. Marian Rice, partner who was first assigned to this matter, and put her on notice. 7. Plaintiff told her that L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. represented Harlan Wittenstein, Esq. in 2009 and that plaintiff, Krichevsky, worked for Mr. Wittenstein at that time in his firm WITTENSTEIN & ASSOCIATES, PC prior to being fired due to defendant Levoritz tampering with that job. 8. Plaintiff told her that Harlan Wittenstein, Esq. was involved in the slander matter involving lawyers legal malpractice and that instant matter has the slander and legal malpractice causes of action as well.

9. Plaintiff told her that in the matter against Harlan Wittenstein, Esq. Mr. Krichevsky is/was witness for Harlan Wittenstein, Esq. and that she should recall that matter and verify that fact. 10. Plaintiff told Miss. Marian Rice, Esq. that he is planning to call Mr. Wittenstein, owner of WITTENSTEIN & ASSOCIATES, PC, to testify against Mr. Levoritz in instant matter and that this will create a major conflict of interest since she has confidential information about Mr. Levoritz, Mr. Wittenstein and Mr. Krichevsky, and that this knowledge is materially adverse to Mr. Krichevskys interest; and that they should disqualify themselves since Wittenstein, Krichevsky and Levoritz are their clients with materially adverse interests. 11. Plaintiff explained her that it would be materially adverse to the plaintiffs interests if during upcoming deposition of Mr. Wittenstein she might try to impeach him as her client and a witness against her client, Mr. Levoritz. 12. In reply to Plaintiffs request for self disqualification she told him that she disagrees and will proceed with representation of Levoritz, and this call ended. 13. Plaintiff was informed by Mr. Wittenstein and verily believes that during plaintiffs employment by WITTENSTEIN & ASSOCIATES, PC he was covered, as required, by malpractice insurance policy of that professional corporation. 14. Plaintiff was informed, verily believes and presumes that L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P was planning to call Plaintiff as witness in the Wittensteins matter.

15. In CNA insurance company book titled LAWYERS PROFESSIONAL LIABILITY POLICY which is company that insures WITTENSTEIN AND ASSOCIATES, PC it says on page 1 of lawyers professional liability policy declarations: NAMED INSURED: Wittenstein and Associates PC. Exhibit B. 16. It further states on page 5 under DEFINITIONS clause - Insured:
"lnsured" means the Named Insured, predecessor firm and the persons or entities described below: A. any lawyer, partnership, professional corporation, professional association, limited liability company or limited liability partnership who is or becomes a partner, officer, director, stockholder-employee, associate, manager, member or employee of the Named lnsured during the policy period shown in the Declaration;

17. The Honorable Court is respectfully requested to take Judicial Notice of the undisputable fact that Mr. Krichevsky was the client of the firm L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. by virtue of a) Mr. Wittensteins malpractice insurance contract coverage of him and every employee of his professional corporation, WITTENSTEIN & ASSOCIATES, PC.; b) Mr. Krichevsky and Mr. Wittenstein work on the matter involving lawsuit against Mr. Wittenstein; c) Duty of L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P.to investigate every aspect of Mr. Wittenstein defense and obtaining confidential information about Mr. Krichevsky and his role in this matter. 18. Plaintiff has a reason to believe that L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. obtained confidential information which is relevant and adversarial to him in instant matter. 19. The Honorable Court is respectfully requested to take Judicial Notice of the undisputable fact that L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. was put on notice of

conflict of interest in defending Mr. Levoritz against plaintiff, and that plaintiff objected to it by Motion to Disqualify. 20. The Honorable Court is respectfully requested to take Judicial Notice of NEW YORK RULES OF PROFESSIONAL CONDUCT RULE 1.9: DUTIES TO FORMER CLIENTS: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) Unless the former client gives informed consent, confirmed in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and paragraph (c) that is material to the matter. 21. The Honorable Court is respectfully requested to take Judicial Notice of the undisputable fact that L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P., Marian Rice, Esq., Candice B. Ratner, Esq. and Noah Nunberg, Esq. did not obtain written permition from Plaintiff to proceed against him in instant matter and violated NEW YORK RULES OF PROFESSIONAL CONDUCT RULE 1.9 and 1.6; in particular RULE 1.6: CONFIDENTIALITY OF INFORMATION which states:

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless: (1) the client gives informed consent, as defined in Rule 1.0(j); 22. The Honorable Court is respectfully requested to take Judicial Notice of the undisputable fact that L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. did not obtain written permition from plaintiff to proceed against him in instant matter and preceded De Facto. 23. RULE 1.7 of NEW YORK RULES OF PROFESSIONAL CONDUCT states: CONFLICT OF INTEREST: CURRENT CLIENTS (2) there is a significant risk that the lawyers professional judgment on behalf of a client will be adversely affected by the lawyers own financial, business, property or other personal interests. Identifying Conflicts of Interest [6] The duty to avoid the representation of differing interest prohibits, among other things, undertaking representation adverse to a current client without that clients informed consent. For example, absent consent, a lawyer may not advocate in one matter against another client that the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is adverse is likely to feel betrayed and the resulting damage to the client-lawyer relationship is likely to impair the lawyers ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken may reasonably fear that the lawyer will pursue that clients case less effectively out of deference to the other client, that is, that the lawyers exercise of professional judgment on behalf of that client will be

adversely affected by the lawyers interest in retaining the current client. Similarly, a conflict may arise when a lawyer is required to cross-examine a client appearing as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client represented in the lawsuit. Comment to rules: [9A] Failure to create, implement and maintain a conflictchecking system adequate for this purpose is a violation of this Rule by the firm. In cases in which a lawyer, despite reasonably diligent efforts to do so, could not acquire the information that would have revealed a conflict because of the firms failure to maintain an adequate conflict-checking system, the firm shall be responsible for the violation. However, a lawyer who knows or should know of a conflict in a matter that the lawyer is handling remains individually responsible for the violation of these Rules, whether or not the firms conflict-checking system has identified the conflict. In cases in which a violation of paragraph (e) by the firm is a substantial factor in causing a violation of these Rules by a lawyer, the firm, as well as the individual lawyer, is responsible for the violation. As to whether a client-lawyer relationship exists or is continuing, see Scope [9][10]; Rule 1.3, Comment [4]. 24. Is Miss. Rice above the law because she advises and defends lawyers who break the law? 25. Did she inform Mr. Levoritz that she and her firm must disqualify themselves for conflict of interest and did he agree to be further represented by them in writing? 26. The Honorable Court is respectfully requested to take Judicial Notice of the controlling law:

Cardinale v. Golinello, 43 NY 2d 288 - NY: Court of Appeals 1977 Accordingly, it is no answer that the lawyer did not in fact obtain any confidential information in connection with the first employment, or even that it was only other members of his firm who rendered the services to the client. 296*296 Irrespective of any actual detriment, the first client is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced in consequence of representation of the opposing litigant by the client's former attorney. (Drinker, Legal Ethics, pp 109, 115.) The standards of the profession exist for the protection and assurance of the clients and are demanding; an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests (Rotante v Lawrence Hosp., 46 AD2d 199; Edelman v Levy, 42 AD2d 758). "[W]ith rare and conditional exceptions, the lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship" (Matter of Kelly, 23 N.Y.2d 368, 376). Mr. Borstein's better course would have been to remove himself completely from the case, declining to represent either Esther or Regina once the conflict in their interests became apparent (see e.g. Cardinale v Golinello, 43 NY2d 288, 296 [1977] ["(A)n attorney must avoid not only the fact, but even the appearance, of representing conflicting interests"]; Matter of Hof, 102 AD2d 591 [2d Dept 1984]; Galanos v Galanos, 20 AD3d 450, 452 [2d Dept 2005]; Sidor v Zuhoski, 261 AD2d 529 [2d Dept 1999]). For rather obvious reasons a lawyer is prohibited from using confidential information that he has obtained from a client against that client on behalf of another

one. But this prohibition has not seemed enough by itself to make clients feel secure about reposing confidences in lawyers, so a further prohibition has evolved: a lawyer may not represent an adversary of his former client if the subject matter of the two representations is "substantially related," which means: if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. It is irrelevant whether he actually obtained such information and used it against his former client, or whetherif the lawyer is a firm rather than an individual practitionerdifferent people in the firm handled the two matters and scrupulously avoided discussing them. See, e.g., Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir.1973); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976); Trone v. Smith, 621 F.2d 994, 998 (9th Cir.1980); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1028 (5th Cir.1981), and in this circuit Cannon v. U.S. Acoustics Corp., 532 F.2d 1118, 1119 (7th Cir.1976) (per curiam), aff'g 398 F.Supp. 209, 223-24 (N.D.Ill.1975); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir.1976); Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 223-25 (7th Cir.1978).

27. At this point plaintiff raised sufficient issue which must be decided before L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. Is/was allowed to represent defendant Levoritz against plaintiff. 28. The Honorable Court is respectfully requested to take Judicial Notice of the undisputable fact that proceeding by L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. against

plaintiff without authority constituents fraud in procurement of jurisdiction, fraud upon the court making order or judgment of the court null and void. Respectfully submitted: November 14, 2011 Brooklyn, New York

X________________________________ MICHAEL KRICHEVSKY, PRO SE, All Rights reserved Without prejudice