lorna lamotte motion to dismiss 2nd amended complaint

UNITED STATES BANKRUPTCY COURTEASTERN DISTRICT OF NEW YORK

2£

^ re: Case No. 1-12-43050-ess

ELENA SVENSON Chapter 7

Debtor___„.._„_ ______ --_—-_____^. "V"

MICHAEL KRICHEVSKY Adv. Pro. No: 12-1229-ess

Plaintiff

-against-

ELENA SVENSONDefendant/debtor

BOARD TF MANAGERS OFOCEANA CONDOMINIUM NO TWO,INTERNAL REVENUE SERVICE

Defendants/Creditors

VICTORIA EDELSTEIN, BORIS KOTLYAR,COOPER SQUARE REALTY, TNG. LANA KAPLUM, personally,FARTD BADALOV personally, BORIS MEYDID, personallyIOHN DOE AND JANE JOHNS personally (fictitious names)

Defendants.

NOTICE OF MOTION

PLEASE TAKE NOTICE that upon the annexed application of ELENA

SVENSON, Debtor/Defendant herein, by her attorney LORNA J. LA MOTTE, ESQ., dated the

16th day of May, 2013 a Motion will be made before the Honorable ELIZABETH S. STONG,

United States Bankruptcy Judge, at the United States Bankruptcy Court, 271 Cadman Plaza, East

Courtroom 3585 on the 30th day of May 2013 at 11:00 a.m. or as soon thereafter as counsel can

be heard, for am Order dismissing the Second Amended Complaint dated April 8* 2013 filed by

Plaintiff Michael Krichevsky, dismissing all claims against Defendant Elena Svenson, pursuant

to Rule 12 ( c), 12 (b)(6) and Rule 9(b) of the Federal Rules of Civil Procedure and Rule 7012 of

the Federal Rules of Bankruptcy Procedure.

PLEASE TAKE FURTHER NOTICE, that answering papers, if any, must be

filed with the Clerk of the United States Bankruptcy Court and served so as to be received by all

parties on or before May 28,2013. Absent objections, the requested relief may be granted.

Dated: May 16,2013

To:

Michael Krichevsky, Plaintiff Pro Se4221 Atlantic AvenueBrooklyn, New York 11224

Sarah T. Mayhew Esq.US Dept of Justice Tax DivisionCivil Trial Sect, Northern RegionPo Box 55Ben Franklin StationWashington DC 20044

United States Trustee271 Cadman Plaza EastSuite 4529Brooklyn, New York 11201

The Law Offices of Lorna J LaMotte PLLC

By: 7s/ Lorna J LaMotteLorna J. LaMotte, Esq.

Attorney for Debtor/Defendant Elena Svenson65 Broadway Suite 839New York, New York 10006(212) 430-6516

Law Office of Ethan GancAttorneys for Boris Kotlyar andVictoria Edelstein99 Madison Avenue, Suite 5009New York, New York 10016

Barry G. Margolis, Esq.Abrams Garfinkel Margolis Bergson LLPAttorneys for Board of Managers of OceanaCondominium No. Two; Cooper Square Realty, Inc.;Lana Kaplxm,Farid Badalov; and Boris Meydid1430 Boradway 17th floor

New York, NY 10018

UNITED STATES BANKRUPTCY COURTEASTERN DISTRICT OF NEW YORK

In re:-X

ELENA SVENSON

Debtor—-X

MICHAEL KRICHEVSKY

-against-

ELENA SVENSON

Plaintiff

Case No. 1-12-43050-ess

Chapter 7

Adv. Pro. No: 12-1229-ess

APPLICATION IN SUPPORTOF MOTION TO DISMISS

Defendant/debtor

BOARD IF MANAGERS OFOCEANA CONDOMINIUM NO TWO,INTERNAL REVENUE SERVICE

Defendants/Creditors

VICTORIA EDELSTEIN, BORIS KOTLYAR,COOPER SQUARE REALTY, INC. LANA KAPLUN, personally,FARID BADALOV personally, BORIS MEYDID, personallyJOHN DOE AND JANE JOHNS personally (fictitious names)

Defendants.X

ELENA SVENSON, Defendants/Debtor, ( hereinafter "Svenson") by her attorney, The Law

Offices of Lorna J LaMotte, PLLC, respectfully represents to the Court as follows:

BACKGROUND

1. Defendant Elena Svenson is the Debtor is the related bankruptcy matter which gives rise to

this Adversary proceeding.

2. Debtor filed her petition on April 27,2012. The proceeding was assigned to Trustee Lori

Lapin Jones who examined the debtor and after such examination, Trustee Lapin Jones filed a no asset

report. Debtor receive a discharge on October 2,2012.

3. Plaintiffs cause of action against Defendant Svenson and all other parties to this action

mirrors a state court action, filed by Plaintiff in the New York State Supreme Court, Kings County,

which was filed on December 12,2008. That cause of action arises out of the purchase of a

condominium by Plaintiff and Svenson as joint tenants on or about November 26,2001. The unit is

located at 120 Ocean Drive West, Apt 5D, Brooklyn, New York 11235.

4. To date the parties still own the property as tenants in common. The parties were in a

relationship and upon their separation, disputes over the ownership, income and expenses of the property

as well as the care and support of the parties now 18 year old son, gave rise to years of litigation in

various state and now federal courts.

5. On or about December 2005 the parties' relationship deteriorated and they moved out of the

apartment. They entered into a lease with Defendants Edelstein and Kotilyar for one year. After the

expiration of the initial term disputes resulted from the subsequent occupancy of the apartment, the term

of the lease and became an additional front upon which Plaintiff and Svenson did battle. As a result of

their differences, Plaintiff commenced a Landlord Tenant action against Edelstein and Kotilyar which

was eventually discontinued when Plaintiff included his former tenants in the Supreme Court Action.

6. The apartment is currently in foreclosure under index number 22088/09 Supreme Court Kings.

The action being brought by Bank of America NA. There was also an action brought by the Board of

Managers of Ocean Condominium No. Two against Plaintiff, Svenson and others for unpaid common

charges under index number 99601/09.

7. On July 31,2012, Plaintiff commenced the within Adversary proceeding with the filing

of a complaint basing his causes of action, according to his cover sheet on 11 U.S.C §

548 fraudulent transfer, §727 ; §523(a)(2) §523(a)(4).

8. Aside from the cover-sheet completed with the filing, there are no other references to the

above listed Bankruptcy Code sections in the complaint and subsequent amended complaints filed by

Plaintiff.

9. Plaintiff then proceeded to file a series of Amended complaints. Plaintiff filed his first

Amended Complaint on August 1,2012, then filed a series of second amended complaints. Plaintiff

served a second amended complaint (that differed from the document as filed on August 1,2012) on the

parties on or about March 4,2013, resulting in a request to the Court by letters dated March 7 and

March 8th by counsel for all defendants, seeking clarification of the version of the Second Amended

Complaint that was to be considered as the true "Second Amended Complaint" On April 9,2013

Plaintiff filed another Second Amended Complaint.

10. Pursuant to an Order of the Court dated March 14,2013 (Doc. # 64), the parties appeared

before the Court at which time the Court entered an Order directing the plaintiff to file and serve the

Summons and Amended Complaint by 4/19/2013 and directing the Defendants to file and serve any

response by May 17,2013.

11. Defendant Svenson responds to the Second Amended Complaint dated April 19,2013 with

the within Motion to Dismiss.

ARGUMENT

12. Defendant Svenson ("Svenson") seeks dismissal of Second Amended Complaint

pursuant to Federal Rule of Civil Procedure Rule 12(c), Rule 12(b)(6), Rule 9 (b) and the Doctrines of

Res Judicata and Collateral Estoppel.

DISMISSAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULE 12( c)

13. On a motion for judgment on the pleadings pursuant to Rule 12(c), the court must apply the

same standard as for a motion pursuant of Fed. R. Civ. P. 12(b)(6). In applying Rule (b)(6), the Hon.

Jerome Feller wrote : "A plaintiff is required only to allege, not prove, sufficient facts establishing a

claim to survive a motion to dismiss. The role of the court is merely to assess the legal sufficiency of the

complaint and not to assess the weight of evidence which might be offered in support of the complaint"

Grow UD Japan, Inc.. vsKo YoshidaAdv. Pro l-09-01415f; In Re Ko Yoshida. Case no. 1-09-46070

RD.N. Y2010. However, a complaint must provide "more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twomblv 550 U.S.

544, 555 (2007). A plaintiff in any case must allege enough facts to state a claim that is facially

plausible as opposes to merely conceivable. Ashcroft v. Iqbal 129 S. Ct 1937,1949 (2009).

14. Further, in detennining the adequacy of the complaint, the court may consider (1) Facts

alleged in the complaint and documents attached to it or incorporated in it by reference; (2) Documents

integral to the complaint and relied upon, even if not attached or incorporated by reference; (3)

Documents or information contained in defendant's motion papers if plaintiff has knowledge of or

possession of the material relied on in framing the complaint; (4) Public disclosure documents required

by law to be filed with the Securities and Exchange Commission, and (5) Facts of which judicial notice

may properly be taken under Rule 201 of the Federal Rules of Evidence. SwaitkowsM v. Citihank.

2010 U.S. Dist Lexis 107317,22-23 (E.D.N.Y. 2010) (citations omitted).

15. Finally when considering motions for judgment on the pleading against pro se plaintiffs,

Second Circuit courts are instructed to construe the pleading liberally. Chavis v. Zodlow, 128 Fed Appx.

800, 802-03 (2nd Cir. 2005). However, even construed liberally, Plaintiffs complaint is legally deficient

and must be dismissed.

16. Under this view, the amended complaint should be dismissed as Plaintiff has failed to

advance any causes of action under applicable bankruptcy or state law. Rather the amended complaint

lists a variety of spurious allegations, but fails to weave together coherent causes of action upon which

relief can be granted.

ALLEGATIONS OF FRAUD MUST SATISFY THEREQUIREMENTS OF FED. H CIV. PROC. RULE 9B

17. Federal Rule of Civil Procedure 9(b) states with respect to allegations based on Fraud or

Mistake as follows:

" In alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be

alleged generally".

18. To meet that standard the Plaintiff must satisfy all elements of the claim of fraud.

He must allege: (1) a material misrepresentation of fact; (2) defendant's knowledge of the falsity; (3)

defendant's intent to induce reliance; (4) justifiable reliance by Plaintiff; and (5) damages, digger and

Fahenstock and Co. Inc. 443 F3d 230.234 (2nd Cir. 2006X

19. Plaintiff has alleged several causes of action that have fraud at the roots of the allegations,

therefore in ruling on the sufficiency of the allegations the Court has to determine whether the

allegations satisfy the elements of fraud.

20. Plaintiffs entire complaint is framed in broad terms, he attributes several broad

statements to Svenson, but never specifies the statement that he "justifiably" relied upon in order to

allege fraud. As an example, Plaintiff states several times that Svenson claimed to be attending

medical school, in some allegations, he states she was in medical school to become a nurse, which is

contradictory at the very least However, he was in a "relationship" with Svenson, he lived with her for

a period of time, they had a child, he would know her daily activities. It seems inconceivable that he did

not know whether she attended medical school. Attending medical school is a challenging endeavor at

best. Maintaining that level of education with a young child and maintaining a household and an alleged

business would prove near impossible without his co-operation. Plaintiff allegations fail to convey that

Svenson kept the charade of attending medical school. Therefore his claim of justifiable reliance seems

implausible. "Justifiable reliance does not exist where a party has the means to discover [a falsehood]

by the exercise of ordinary intelligence, and fails to make use of those means" Kurtz v. Fov. 65 AD3d

741. 743 [2009] [internal quotation marks and citations omitted].

21. Further in pleading fraud, Plaintiff s allegations fail to convey the level of specificity

required. Plaintiffs complaint makes general statements and conclusions about her alleged marriage

fraud, her alleged lies about her education, her alleged promise to contribute, her use of a psychic in

changing her name. Defendant Svenson contends that these allegations fail to rise to the level of the

specificity called for by the statute and does not convey the level of reliance that is elemental to a claim

for relief through Fraud.

CERTAIN ALLEGATIONS OF FRAUD ANDBREACH OF CONTRACT ARE TIME BARRED

22. Certain allegations as they relate to the purchase of the apartment are time barred because the

alleged misconduct occurred more than 6 years ago. New York Civil Practice Law and Rules section

213(8) states:

"Actions to be commenced within six years:

2) an action upon a contractual obligation or liability, express orimplied, except as provided in section two hundred thirteen-a of thisarticle or article 2 of the uniform commercial code or article 36-B ofhe general business law;

8) an action based upon fraud; the tune within which the action mustbe commenced shall be the greater of six years from the date the causeof action accrued or two years from the time the plaintiff or the personunder whom the plaintiff claims discovered the fraud, or could withreasonable diligence have discovered it."

23. Plaintiff s Second cause of action against Svenson for fraud and the causes of action that

flow from that "alleged" instance of fraud are time barred because the events occurred more than six

years before the action was brought

24. Plaintiff first brought an action against Svenson based on this set of facts in December 2009

with the filing of the Summons and Complaint in the Supreme Court of the State of New York, Index

No. 33343/08. ("Supreme Court Complaint") (See exhibit A). According the Supreme Court Complaint

and the various complaints filed in this Adversary proceeding, The alleged acts that constitute the

alleged instances of fraud occurred on or before November 2001 more than 8 years before Plaintiff first

brought an action to Court.

25. It should be noted that Plaintiff's complaint in the instant case states facts that mirror the

facts as stated in the Supreme Court Complaint. If would be fair to state the facts are identical.

26. In the Supreme Court action, Plaintiff also sought to amend his initial complaint to include

additional causes of action based on fraud and flowing from the alleged fraud such as claims for

Constructive trust and promissory estoppel. ("Proposed Amended Supreme Court Complaint")(See

exhibits).

27. Plaintiff sought leave to amend by motion which was denied by Hon. Bert H. Bunyan,

Justice of the Supreme Court. Said motion was denied and in denying the motion the Court found that

the allegations in the amended complaint were without merit because the allegations were based on fraud

and the fraud claims were time barred.

28. Hon. Bert A. Bunyan, in Ms order (See Exhibit C) wrote :

" Plaintiffs proposed ninth cause of action for fraud against Svenson1 is untimely, as it is based

on events that occurred between 1992 and 2000, or more than six years after the commission of the

alleged fraud (see CPLR 213 [8]. Moreover, plaintiff is not entitled to the benefit of the two-year

'discovery rule' in fraud causes because he does not allege whey he could not discover the alleged fraud

by February 2009, or two years before the date of the proposed amended complaint (see CPLR 203 [8]

and 213[8]" Michael Krichevsky vs. Svenson, et al. Index No. 33343/08, Order entered September

1 See Plaintiffs proposed Supreme Court amended complaint, dated February 16,2001(attached as Exhibit B) pages 13 and 14 outlining essentially the same allegations contained inPlaintiffs Second cause of action of Plaintiff s second amended Adversary complaint datedApril 8,2013.

30,2011. Said Order has never been appealed and thus is a final Order.

29. Consequently, because the facts as alleged in the Supreme Court complaint were found to be

time barred and Plaintiff essentially makes the same allegations in his Adversary Complaints under New

York State law, the cause of action relating to Svenson's alleged fraud that occurred at any time prior to

2002 are time barred.

30. Therefore Plaintiffs First, Second, Fourth and Fifth2 Causes of Action are time barred and

should be dismissed.

31. Additionally Plaintiff s S econd cause of action for breach of contract is also time barred since

the alleged promises and breaches of promises occurred with the purchase of the apartment in November

2001.

PLAINTIFFS FIRST, SECOND, FOURTH AND FIFTH CAUSES OF ACTIONFOR FRAUD, CONSTRUCTIVE TRUST, PROMISSORY ESTOPPEL AND

UNJUST ENRICHMENT ARE BARRED BY THE DOCTRINE OFRES JUDICATA AND COLLATERAL ESTOPPEL

32. A court may dismiss a claim on res judicata or collateral estoppel grounds on a motion for

judgment on the pleadings. See eg. Day v. Moscow. 955 F. 2d. 807, 811 (2nd Cir. 1992); Waldman v.

VillofKirvasJoel 39 F. Supp. 2d 370,372-73 (S.D.N.Y. 1999) ("A defense of res judicata may be

tested by a motion pursuant to Rule 12(c).").

2The cause of action for Unjust Enrichment and Constructive Trust flow from the allegedfraud and therefore cannot stand. Furthermore the statute of limitation on Unjust Enrichments is3 years pursuant to CPLR 214 as it pertains to the Fifth Cause of Action.

33. The doctrine of res judicata, or claim preclusion, provides that a "final judgment on the

merits of an action precludes the parties or their privies from relitigating issues that were or could have

been raised in the action". Allen v. McCurry, 449 U.S. 90, 94 (1980). Comparatively, under the

doctrine of collateral estoppel, or issue preclusion, "once a court has decided an issue of fact or law

necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different

cause of action involving a party of the first case." Allen 449 U.S. at 94.

34. As mentioned above, this is not Plaintiffs first bite of the apple. He initially commenced the

actions based on essentially the same facts in the Supreme Court action. That case is still pending. In

that case, there was extensive pre-trial litigation including ah attempt by Plaintiff to amend his initial

complaint

35. Using the same facts that are presented in this case, Plaintiff sought to include additional

cause of action for fraud, constructive trust, promissory estoppel against Svenson. All based on the

purchase of the apartment in November 2001 and her alleged promises to contribute in August 2000.

36. In reviewing the complete record of the case to that date and all of the papers submitted by

either side in support and opposition to the motion, Justice Bunyan ruled that those causes of action were

time barred. (See Exhibit C pages 8 and 9). m view of the fact that the decision was rendered in a prior

Court wherein all the parties had an opportunity to be heard, the decision rendered by that Order

constitutes a Final order and renders the cause of action against Svenson, Plaintiffs First, Second,

Fourth and Fifth causes of action are barred by the doctrines of Res Judicata and collateral estoppel.

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULE 12(b)(6)CERTAIN CAUSES OF ACTION SHOULD BE DISMISSED FOR FAILURE

TO STATE UPON WHICH RELIEF COULD BE GRANTED

A. SIXTH CAUSE OF ACTION CONVERSION

37. Plaintiff alleges as his Sixth cause of action against Svenson that she converted the

proceeds of the profits from the rental unit; converted at least $100,000..00 from the parties joint bank

account.

38. Under New York law, "[t]he tort of conversion is established when one who

owns and has the right to possession of personal property proves that the property is in the unauthorized

possession of another who has acted to exclude the rights of the owner." Republic of Haiti v.

Duvalier,211 AD2d 379,384,626 NYS2d 472,475 (1st Dept. 1995).

39. In general " (t)he opening of a joint ban account creates a rebuttable presumption that each

named tenant is possessed of the whole of the account so as to make the account vulnerable to the

levy of a money judgment by the judgment creditor of one of the joint tenants." See Tavar v. Tayar

208 AD2d 609, 610 (2d Dept 1994), also see generally Banking Law 675.

40. Therefore under New York law, Svenson was entitled to any and all funds in the account,

Plaintiff did not have exclusive rights to the property contained therein, Svenson's alleged withdrawals

was authorized by virtue of the fact that it was a joint account.

41. Consequenty, Plaintiff has no cause of action with respect to the funds in the joint account.

B. NINTH, TWELFTH AND FIFTEENTH CAUSES OFACTION FRAUD AGAINST THE COURTS

42. Plaintiff alleges in several causes of action that Defendant Svenson has committed fraud

upon various courts in various proceedings. He alleges at one time or another Defendant Svenson has

committed fraud in her citizenship process, the Landlord, and Tenant court, the Bankruptcy court and the

Family court.

43. In Ticketplanetcom 313 B.R.46 ( Bankr SJXN.Y 2004X the court outlined the elements

for a claim for fraud on the court, utilizing the standard expresses by the Second Circuit in Leber-Krebs

Inc. v. Capital Records. 779 F.2d 895 Q"* Cir. 1985X

44. The elements of the claim as stated by the court are : " (i) the defendant's misrepresentation

to the court; (ii) the impact on the motion as a consequence of that misrepresentation to the court; (iii)

the impact on the motion as a consequence of the misrepresentation; (iv) the lack of an opportunity to

discover the misrepresentation and either bring it to the court's attention or bring an appropriate

corrective proceeding; and (v) the benefit the defendant derived by inducing the erroneous decision" Id

at 64.

45. Furthermore in alleging fraud, Plaintiff must plead "(i) an misrepresentation of an existing

material fact (ii) knowingly or recklessly made by on party to another (iii) with the intent to deceive (iv)

which representation is justifiably relied upon (v) to the detriment of the party relying on it" Id at 59.

46. Additionally, representations of fraud are governed by Civil Rule of Federal Procedure 9b

which states that: " In alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be

alleged generally." Plaintiff is required to plead the who, what and when of the claim upon which he

seeks relief.

47. In his first cause of action, Defendant alleges that Svenson committed immigration fraud

such that she fraudulently stated her marital status to the immigration authorities in order to receive

citizenship. This cause of action fails because under the Ticketplanet standard in that Plaintiff suffered

no damages as a result of Defendant alleged fraud in obtaining citizenship. In filing her application for

citizenship Svenson owed no duty to Plaintiff, she made no representations to him that resulting in her

obtain the benefit of citizenship because essentially he was not a party or participant in that proceeding.

Consequently that cause of action should be dismissed.

48. In his ninth cause of action, Plaintiff alleges that Svenson committed fraud upon

both the Bankruptcy Court and the Family court.

49. With respect to the Bankruptcy Court, Plaintiffs allegations are without merit in that he did

not plead with specificity the statements made by Svenson that arose to misrepresentations. He did not

plead that she knowingly made false representations to the court with respect to the alleged "accounts

receivable "that she was owed. As a matter of fact Plaintiff could not state one way or the other whether

Svenson even knew of the alleged assets. He did not plead when she was to have allegedly received the

asset, whether there was any additional funds owed to Svenson.

50. Furthermore, Plaintiff was an active creditor in the bankruptcy proceedings prior to this

action. He attended the meeting of creditors on June 1 2012, he was given an opportunity to question

the debtor and had the opportunity at that time to inform the trustee of his knowledge with respect to his

alleged conversation of Mr. Berlinkiy, had more than two years prior to filing. He was also given

additional time by the trustee to provide her with any additional information he had pertinent to the case.

To date, Plaintiff has not provided said information to the Trustee, who is empowered with the authority

to investigate and recover assets due to the estate. Upon information and belief and as a result of

discussions with the case trustee, he provided no further information with respect to the "alleged asset".

51. Plaintiff, also alleges Svenson and her attorney committed fraud against the Family Court.

Prior to addressing the sufficiency of this allegation, Defendant Svenson contends that this matter is

another instance of the Plaintiff attempting to bootstrap a state court action into the bankruptcy matter, in

order to receive another bite of the proverbial apple after a final decision has been made.

52. Attached to this motion as exhibit D is a copy of a family court decision which essentially

outlines the family court proceedings and denies on the merits some of the claims made by Plaintiff hi

this action. Therefore Svenson contends that this claim is barred by Res Judicata.

53. Additionally Plaintiff s claim of fraud upon the court fails on one of the essential claims

that he had no opportunity to highlight misrepresentations to the court and present alternative evidence

to the Court. Rather, Plaintiff as he is with all actions that he prosecutes was actively involved, he had an

opportunity to provide his own financial records rather than rely on the documents provided by

Svenson's attorney.

54. Plaintiffs complaint even alleges that his allegations with respect to this cause of action

are based on circumstantial evidence and his belief. Here again Plaintiff fails to plead with specificity

with respect to the allegations of fraud and therefore the cause of action should be dismissed.

C. ELEVENTH AND SIXTEENTH CAUSES OF ACTION TORTUOUSINTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONSHIPS

55. Under the laws of New York, in order to succeed upon a claim of TORTUOUS interference

with business relations, a plaintiff must allege: "(1) the plaintiff had business relations with a third party;

(2) the defendants interfered with those business relations ; (3) the defendant acted for a wrongful

purpose or used dishonest, unfair or improper means; and (4) the defendant's acts injured the

relationship." In re Bernard L. Madoff Inv. Securities LLC (MadoffK 440 B.R. 282,295 (Bankr.

S.D.N.Y. 2010) (quoting Catskill Dev.. LLC v. Park Place Entm't Corp.} 547 F. 3d 114,132 (2d Or.

2008).

56. "Tortuous interference with prospective economic relations requires allegations that a third

party would have entered into a contractual or economic relationship with the plaintiff but for the

defendant's wrongful conduct Conduct constituting tortuous interference with business relations is, by

definition, conduct directed, not at the plaintiff, but at the parry with which the plaintiff has or seeks to

have a relationship . Under New York law, in order for a party to make out a claim for tortuous

interference with prospective economic advantage, the defendant must direct some activities toward the

third party" Tucci v. Cauffied et aL. Sup. Ct Nassau County, Index No.: 16807-09, Order entered

June 4,2010 relying on Vigoda v DCA Prods. Plus. 293 AD2d 265,266; Murtha v Kalhorn. 237

AD2d 496,497), Carvel Corp. v Noonan. 3 NY3d 182,192)

57. Plaintiff makes vague allegations to having relationship with real estate brokers. He makes

no allegations that Defendant Svenson directed any conduct toward the brokers or potential buyers.

D. FOUimEENra CAUSE OF ACTION - FRAUDULENT CONVEYANCE

60. Pursuant to New York Debtor creditor law Article 10 any conveyance made and

every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to

creditors without regards to his actual intent if the conveyance is made or the obligation is incurred

without a fair consideration

61. Further in determining fraud in this context courts look at "badges of fraud," Overview

Equities. Inc.. 4 AD3d 495 [2d Dept 2004]. The Appellate Division, Second Department has

considered, the following indicia of fraud: (1) the close relationship between the

debtor and the conveyed entity; (2) the inadequacy or absence of consideration; (3) the debtors'

knowledge of their debt to the plaintiff and their inability to pay it; (4) the debtors' retention of

control of the real property after the conveyance; (5) the fact that the real property was the only

asset that the debtors owned to pay their obligation to the plaintiff.

62. The allegations of Plaintiff s complaint fail to meet those standards, (a) there was no close

relationship between the Svenson and the tenants, rather it was a landlord tenant relationship; (b) the rent

charged by Svenson was in fact higher that the amount charged by Plaintiff during the period of the

month to month tenancy, Plaintiff charged $2600, Svenson increased the payment to $2800.00; (c) even

if taking Plaintiffs allegation as true he had not sufficiently established that Svenson was a creditor

within the meaning of the statute. Consequently it cannot be validly asserted that Svenson had knowlege

or a debt to Krichevsky; (d) Plaintiff does not allege that the assets was her only asset.

63. All other allegations contained in the complaint with respect to this cause of action add no

merit to Plaintiffs claims.

CONCLUSION

Plaintiffs complaint should be dismissed in its entirety based on the foregoing statutes and

points of law.

WHEREFORE, it is respectfully request that the instant proceeding be dismissed in its entirety

and the Defendant ELENA S YENS ON be awarded its costs and disbursements in defending this action,

together with such other and further relief as this Court deems is just and proper.

Dated: New, York, New YorkMay 16,2013

TO:

Michael Krichevsky, Plaintiff4221 Atlantic AvenueBrooklyn, New York 11224

Sarah T. Mayhew Esq.US Dept of Justice Tax DivisionCivil Trial Sect, Northern RegionPo Box 55Ben Franklin StationWashington DC 20044

United States Trustee271 Cadman Plaza EastSuite 4529Brooklyn, New York 11201

The Law Offices of Lorna J LaMotte PLLCAttorney for Defendant Elena Svenson

/s/ Lorna J LaMotteBy: Lorna J LaMotte, Esq.65 Broadway, Suite 839New York, New York 10006(212)430-6516

Law Office of Ethan GancAttorneys for Boris Kotlyar andVictoria Edelstein99 Madison Avenue, Suite 5009New York, New York 10016

Barry G. Margolis, Esq.Abrams GarGnkel Margolis Bergson LLPAttorneys for Board of Managers of OceanaCondominium No. Two; et al1430 Boradway 17th floorNew York, NY 10018

1

EXHIBIT A

SUPREME COW OF THE STATE OF NEW YORK

MICHAEL KR1CHEVSKY,Plaintiff,

VICTORIA

Brookfrn, NY J1235

Tothc^oveaamedDcfeBdaots:

.SUMMONS

ELAIN1IFF DESIGN ATESKINGS COUNTY AS TH^HACE OF TRIAL,

LOCATIC^OF

2502 86tfe StreetBSOOKL1H, HT 11214

or

complaint

2008

SUP8EMECOURT DP THE STATE OF MEW YOSKCOUNTY OF KINGS,

~ : : — ~ xMICHAEL KKICBEVSKY,

Plaintiff;INDEX No.:

VERIFIEDCOMPLAINT

ELEHASVENSON, VICTORIA, BQRSS KOTLYAR,

Premises: 120 OceaBa Drive West, Apt SDBrooklyn, NY 11235

and forMichael Krichevsky, by his attorneys, Baisamo & Rosenblatt LLP, as;

Ms CoaaptiaA, reêctfully alleges:

PARHES

1. PtantiffMieb^lKridiev^raKdes in the County of Kjngs, State of New Yor^

1 IMendairElem Sveason reades at 2620 Ocî 1235, C<ju^ of Kiflgs, Sta» ef New Yorit.

3.

.4,

5. DcfendaMMo^Svenscm has broached her oral agrwmeait to i^ !•• . i

espens» associated vft& Ifae wig€<a jHoiasea, created waste in the subject premises,

fisndoleritJy coaverted rent moiucs collected fiom the object premises to her OPWniBe,

Ooeana Drive West Apt 5D,Broold i, NY 11235.

ttitffiitif^wffy u'.fwfiriyi wftfa.

bject premises as well7. On fir fthmrt piytfther-^BOft, ne^yn^fflffiy CTtf»^«M " " a fFB^TTl ttf Ifflgfr flgrfffnMurf yife ie

ii--':-,!1 • •Ijî1.-;-^

8, Plaariff bangs flas action seeing damages,SBd a partition or safe of tf» subject'

VENUE

9. Kings Cot^ is ti»J5>pio|)aatev«tt^

as ttepraoaes are situated in Kiags County, State of New York,

FACTS COMMON TQ AT'T* CAUSES Of ACTION

10. Oa or about August 2000, Nfichad Kriehevsky apdHena SveBsoacafceodiEtoacoateact

toboyacofidoffiiniuiiiunit, known as and located at 120 Oceana Drive West, Apt 5D,

Btookiya, NY 11235 as joiat partners. TfejHmibasep^ for tlwsalêct premises was

$420,000.00. "Hwpartieshad agreed to share all «KtsaBd«cp«ises^«xastediwai fee

purchase.

11. Mkbael$42,000. i

12. At the tlcae,. El^ SVWBOH owned a coopoatiw iffiit known »ffld located st 2580i

Ocean Bsdcway, A|3t 2M, Bco<^n, NY 11235. HaiaSve®6

cooperatiV5=.umt in order to Eqojdate fends B»>«saiy fi» her to contribute ters&are of

ti^ purchase price of litt subject

's HELOC J^pIicaJion-was denied.

ve. On or about October 200 lr

the coopHative.was sold for $ 1 80,000. Elena Svenson premised to contribute 5^60,000 of

tiie sale proeeeds^Dwaids &epvnAase of the eoudwniaHffli. However, Elena Ss enson

14. Oh or abomNovend)er 26, 2001, Mi^îaelKriclKrvslgr aadEta»aSv«sscmbeefflae&eowaKs ia lee of resd pnêi^ kaowa as awl located at 120 Oceana Driro West^ Aft. SD>

ftôklyD, NY by porcbasaag fi» property "asfeisbaad and wife1" from BrightoiTwo,

IXC. Said iHemises ware cfcweyed by deed da^Fe&aary 27, 2002, Red 5494, Page 2289, ' i

ncrver

fcc--^^-," .v' '. "- --V.1-":-'1 -:'' -' «

.Kii$fcevskyowBsmi«iK>lessl!l^

agreement to stee all expenses

tnrit. '

17, Nonefeetw^ ti» fcmds used to purchase the property were solely and conpptetdy

contributed by tike plaintiff, Michael Kndwv^,v^Bdirai^«Kce«fcd $50^000

mctaiEng the dowa payment and closing costs. :

IS. QaoraboatNovenafcer 26, 2001, Miîa^ Krkfccvskyaad Hena Svenson«cecafcedafi^

mffllga^ onrtiw subject property, in tiie amount of .$378 000.00 held byJPMorgan Chase

Bank

19. Debate t3» ties* j»(x Eeeaarat to sfcare co^ a^ stpeffiesj all maa&lyincjodmg montage ps^ vtfflity Ganges, tastes and

intifiiM Said monthly

oaiying exposes were approximately $3,600,00,

20, "thereafter, on or about Aôst 11, 20 , Jfidiadrefiaeoiocd &«r mortgsê and rat^sd ii o a a coasoKdailon, «ctensionand

modifioatkat aêemem -wiiereby WadiiiigtoD Mitfoal Bade, N A. became the holder of a

coffiolictoeckBQte is the amount of $565,000. •

21. All moB&fy casingnnepJs, iîfity charges, taxes and maintenance fees, were soldyaixl completely,

laintiff Michael iCriebevsky. Said monflilycarryiiêxpttises were, aad

be, proxknately $4^00,00, . I

22, Bi ad<fidoa, on or about December 2001, the pages

subject coadominimn

aôciated wife the reiK>vations, tetalii^ qver $75^000 were pad solely aod <xxnpietely

23. OB <ff about August 2005* as the padtes rdatioiisl% begoi to detoiotate,

Krichevsky and Elena Svenson ottered into an agreemeat whereby Svenson agreed to

tcaosfer iwr oae-haJfinJerest in ike subject property to plaintiff.

'••" , ? ? > ' < .y:"--.-j*'X.- :

-.- "/*•!. ' "-.-•-

" jf-.--^--.^

o^^f f ' .

bas^

income taxes fi>rtJ»20Q2'fiscal year..

sfcr

t to avoid an appcataoca of impropriety.

/ 2£ At ibead?! of a&awoaiHfflit, thefts

iHfeririatfOT

,bcl&Krt^^

premises and entered Jtoo a ooe-ycar lease agre<anent wi& VictoJaEdelstin at a monthly

rent of $2^00, Tht tease3% animal increases.

,EdeIsîi^^

s*Meslwe^tore^

Defendant Syenfion agreed, Dorfng

several potentMpurcMseiB.

28, Ota. or abtstf Jtme 2008, Edelstia infoaned plairdt

e and t she now wan^ to stay in tbe apartment At the time, plaintiff had an

inteeêd jmrda^r fir 1i» mibject piamses. .Edelstin that he Vrtjuld not raiew bar lease. Noneto?ÊdeIstHire&sed to vacate.

e^ Eddsfin lefiised to allow potwjtial pwcbaa^

29, 0poea ii&nEatkoi ami beEefj beesseai June 2008 aodpreseat,thw&wereferee(3}

purchased diSaeat Banfa in fee same condonimi30. Cfe.or about Aagost 2508, Eda^wvsSy

|ffoceeding againa Edefati

L&T Index 95633/08). Raises ioleid was to ^cOJHlo^

ofpossessioa.

a»i BOTH Kotlyar, as teaaaas, Bad stueitd ifito a one year IwseêsDOKtf with Svcnson,

as lawftord, commencing in October 2008 at a monthly tent of approxkaately $2,825.00

petoooB&. ,

32, Said tease agreement Is -wefi bdowisaitei reat, which woaid demwdiio^t^n$3,400.00 per month. AddittonaSy, said lease was fiaudutently entered into wi&out

pkmtjffs knowledge or consent i33. UpcmiHforaiatkjn, and beBsfc SBK»

coSoGtasdislainaUxeirt monies recel fora

in any rârd to the fiscal tespoimbilitiesassocia^willi^^ subject ;

(Breach of oial aêemeat)34, Plaintiff repeals and realleges eaeb of the allegations coniamed in paragrafdis i-H w

35, Sveosqt^sMkgg to pay qqy canning costs aai peases assorted wi& the sob|ect

coadominiani umt coastitates a tecach of 4e parties* oral agrcemart to ecpafiysM* all

36. Moroover, Svcnaca's offer of a lease agreeaowatf to Edelsfia d«ringaiepead«vcyofasommaiy holdover proceeding eonffloeaced by bo&Kridiew8iyan4

an intentional feeacfe of the parties1

5181366*8 ability to sell tfce unit Ii Svoisoa's actions have substontklly damaged plamtiff inan arowmtto be detenninedat

trial, but ao;less1iian $600,000.

epadonHHiunt

38. Plaintiff rep^ and reaUegweacfe of the Mkgati^ v v <

t& same fitfce and effect as. if felly set fotfe at teng&fcerein,

39; DrfaaJaBl Sveosoa has received tfae-bene^t of fet|»gsn$nts isad^ and j

^ "'fe--"'-'''§""••-•' " ""•;-'-^?-r"> l>!"-. ••• '"î-1 i|to^c*,>r>-

40.

.e benefit of plaintiff spa;^naxts by coUwtmg ail

rent momesiteceived from the sftject unit, though she does not con&ibate to ejcanyuig

«^s associated-v^lhe subject viniL ;

42. fa. equity and ia good conscience, Svensoa should be ordered.to pay her share of thecarrying costs and expenses, and, should be otdeted to transfer all rent monies collected

fiom tbe subject premises to plaintiff,t

43. Svensoa ha^beeo. iH^arfly enriched at the expense of plaimiff man amount to be:' ' :

detennxoed at trial, but no teas titan $500,000,

(Waste)

44. Plaintiff repeats and realleges each of &e allegations contained m paragraphs 1-43J with

the saneforee and effect as if folly set forth at length herein.

45. jJ»pnspft^iW'O"»Tg™*^'B?stel?MBlfes|i^^pr^^^

to p^r her personal income taxes for the 2092 fiscal year, thus cai2OTQgafed«rallieHtobe

pJacedoa fte proper^, and, by Ming to coBect marto rent §a the sobjeet premises.

46. Svensoe's actioas have caused piaiptrff^ftpfoffi8 in an amount to be determined atitrial,:

but no less than $150,000. ':

47. Defeidant*s SC&GDS woe willful, waston and ii^cw^8Massadi.pMntiffisait^d

to punitive damages in the sum of $750,000. =

A3SGD F . A. FOURTH CAUSE(Conversion) . :

48. Plaintiff repeats and realleges eachof the aiiega&ms contained IB paragraphs 1-47 with

the same force aad effect as if Miy set foitfa at length hgein.

49. gvgqgfm Tma-pefiTga^ to prennA* plaarrfffF -an^t his share of-proSts derived from

50. As sodi, Svefiam has wrongfdly converted plaintiff s property to her own.

51, By reason of fbfi foregoing, plaistifF has sustained money damages inthesum,tobe

determined at trial, b^ no less 1b $15,000, ._ . .. -=—

:'s actions were willful, ^wanton and malicious, and as such, plaintiff isjezgitled

to pui&ive damages in tb* sum of $50,000.

(Tortfous Interference JNJ& Prospective Economic Rcfattoosaips)

53. Piaifitiff repeats an! reafieges each of the allegations contaiaeidthe same fesce and «£fert'as if feBy set fi»fe at length baein,

54. Defeadant? Bave inteônaJfy aod knowing interfered y?i

apartoeat, and b) by eotanig into a l«se agreement wl

Clascal dori^ li» peodoKy of a holdover proceeding to recover possession of the;i

jffOBisesL Defeâats woe aware of Plaintiffs intent to sdl foe subject premises.

55. Based oa tl» fiategoing, Plaintiff is wdjfied to judgtneat in an atncumt tobedetennisedat

AS AJTO FOIL A SIXTH CAUSE. OF ACTTON— as asainst DefoidaatK

KHis^to same force and.rffect as if fully s t forth at length iierciiL

57. The aHeged lease agreement entered mto between Defendant Sveni}oii, as lai

Defendants Edelsgfi and Ko^yar, durii^ the pendency of a soiantai'y

5S, As SK& the base a^reematf shoi d be deoned nail aad void,aT«l,PIaffl^ffîtffititiedtoajijdgmeirtfordasiagesmanaimimttobed

"

4

WHEREFORE, pfofgtrff4<imftn<fgjndffyngn*' as follows:

a) On plaintiffs finrtcai^ of oajodgmcot in the a^

b)

c) O» plaintiff's third cause of actioa, jadgmeatt in the smcwmt of $150,000, pins

adrfftfomrsumstobedieteaainaiattt^

$750,090; and*

4) On plaipfilfs fourth cause of actkffl^JBdgai«jt in flteattaouot of $15,000, plus

addfik^sranstobedetaffiiaedaitria^ph^

$5a,000;and, i

e> Ctaplaktifrs fifth (^use of action, judgneotin the amount of $800,OW

f) On jrfairatifirs sixth cause of action for aaOifedasQaingtfae alleged lease a j««ii«it

naH aadvoid, mid judgment ic fl» amount of $500,000 pfos

dctenmned at trial, ptospumtive damages in iieamotmt of .

g) to plaintiff ssevo^rause of ac&o^

ic^s and pw^Ss oftite real pcpe^ and of all dealings wf& and transactions !• , ' \; and, ;

descalbed in the Complaint be had, according to tiiereqx»trw rights of tive parties'

Httraest ftaein, sabjed: to fise aiott^^ now of record against the property; aisd, ifs

partition cannot be made without #sat prtgedice to fee ownccs,liiatasaleoft|»

property be hai aad a

. '

disbrasemeats of &b «^<m; and,

i) FOTallcaasanddistorseaiftilB associated wi&tfas action,- a»C

i-f• - -?";&$& #:*z-. .>;;^-J|^-Vygf-;?MM3p£|r ; 5,'-?f,--; '/«

Qv *Z eL*r; *v • '3 ltv'!:;:-:';v

*«BJBWlbnt

EXHIBIT B

SUPREME COURT OF THE STATE OF NEW YORK-COUNTY

INDEX NO. 33343/2008MICHAEL KRICHEVSKY,

Plaintiff,AMENDED COMPLAINT

-against-

ELENA SVENSON, VICTORIA EDELSTEIN & BORISKOTLYAR,

Defendants.

Plaintiff Pro Se, as and for Ms Amended Complaint, respectfully alleges, upon

information and belief

1. The plaintiff Michael Krichevsky, at all times herein mentioned was and still is a resident of

the County of Kings and the State of New York.

2. 1. Defendant Elena Svenson resides at 2620 Ocean Parkway, Apt 3K,

Brooklyn, NY 11235, County of Kings, State of New York.

3. Defendants Victoria Edelstin and Boris Kotfyar are the former licensees or

tenants of 120 Oceana Drive West, Apt SD, Brooklyn, NY' 11235.

4. Michael Krichevsky and Elena Svensoa are the fee-owners of 120 Oceana Drive

West, Apt 5D, Brooklyn, NY 11235.

5. Defendant Elena Svensoa has breached her oral agreement to share all costs and

expenses associated with fee subject premises, created waste in the subject premises,

fraudulently converted rent monies collected from the subject premises to her own

use, and has intentionally interfered with Plaintiffs ability to sell the subject

premises.

6. Defendants Victoria Edelstin and Boris Kotlyar have intentionally interfered

with Plaintiffs ability to sell the subject premises as well.

7. On or about October 2008, Defendants entered into fraudulent lease agreement with

the sole intent of harming Plaintiff

8. Plaintiff brings this action seeking damages, and a partition or sale of the subject

premises.

VENUE

9. Kings County is the appropriate venue for mis action brought pursuant to RPAPL

§ 901, as the premises are situated in Kings County, State of New York.

FACTS COMMON TO ALL CAUSES OF ACTION

10. On or about August 2000, Michael Krichevsky and Elena Svenson entered into a

contract to buy a condominium unit, known as and located at 120 Oceans, Drive

West, Apt 5E>, Brooklyn, NY 11235 as joint partners. The purchase price for the

subject premises was $420,000.00. The parties had agreed to share all costs and

expenses associated with file purchase.

11. Michael Krichevsky solely and completely provided the down payment in the

amount of $42,000.'

12. At the time, Elena Svenson owned a cooperative unit known as and located at

2580 Ocean Parkway, Apt 2M, Brooklyn, NY 11235. Elena Svenson represented

that she was going to obtain a home equity line of credit (hereinafter "HELOC")

against her cooperative unit in order to liquidate funds necessary for her to

contribute her share of the purchase price of fee subject condominium unit Upon

information and belief, Elena Svenson's HELOC application was denied and

closing took place without her contributing any money at closing which took place

on or about November 26,2001.

13. On or about November 26,2001, Michael Krichevsky and Elena Svenson became the owners

in fee of real property known as and located at: 120 Oceana Drive West, Apt, 5D, Brooklyn,

NY by purchasing the property from Brighton Two LLC.

14, Said premises were conveyed by deed dated November 26, 2001 and recorded on February

27,2002, Reel 5494, Page 2289.

15, At that point, Elena Svenson promised to sell her cooperative and contribute money later. On

or about October of 2002, the cooperative was sold for $180,000. Elena Svenson promised to

contribute $90,000 of the sale proceeds towards the purchase of the condominium. However,

Elena Svenson failed to contribute any funds whatsoever toward the purchase of the

condominium.

16. Michael Krichevsky owns in fee no less man an undivided one half interest in said premises.

17. Krichevsky and Svenson had entered into an oral agreement to share all expenses

associated with the subject condominium unit

18. Nonetheless, the funds used to purchase the property were solely and completely

contributed by the plaintiff, Michael Krichevsky, which sums exceeded 55,000.00

including the down payment and closing costs.

19. Prior to closing, Elena Svenson submitted a paperwork necessary to be approved as

a Borrower by lending bank.

20. On or about November 26, 2001, Michael Krichevsky and. Elena Svenson each executed a

first mortgage on the subject property, in the amount of $378,000.00 held by JP Morgan

Chase Bank.

21. Despite the parties' prior agreement to share costs and expenses, virtually all monthly

carrying expenses including mortgage payments, utility charges, taxes and maintenance

fees were solely and completely contributed by plaintiff, Michael Krichevsky, Said

monthly carrying expenses were approximately $3,600.00.

22. In addition, on or about December 2001, the parties commenced major renovations in the

subject condominium unit which included a rehabilitation of the bathroom, ceilings

throughout, pluming throughout, and tiling throughout All costs and expenses associated

with the renovations, totaling over $75,000 were paid solely and completely by plaintiff

Michael Krichevsky.

23. On or about July 2005, Michael Krichevsky and Elena Svenson teed to refinance tiieir

mortgage in order to get a lower monthly payment By that time Elena Svenson's low

PICA score prevented that from occurring. As the party's relationship began to

deteriorate at the advice of mortgage broker, Elena Svenson entered into an agreement

whereby she agreed to transfer her one-half interest hi the subject property to Plaintiff in

order for him to be the sole borrower,

24. Thereafter, on or about August 11, 2005, Michael Krichevsky and Elena Svenson

refinanced their mortgage and entered into a loan consolidation, extension and modification

agreement whereby Washington' Mutual Bank, NA. became the holder of a consolidated

note in the amount of $565,000.

25. All monthly carrying expenses under the refinance agreement, including mortgage

payments, utility charges, taxes and maintenance fees, were solely and completely

contributed by plaintiff, Michael Krichevsky. Said monthly carrying expenses were, and

continue to be, approximately $4,500,00.

26. However, immediately after closing, plaintiff learned of an approximately $100,000 federal

tax lien on the property based on Elena Svenson's failure to pay her personal income taxes

for the 2002 fiscal year.

27. At the advice of an accountant, the transfer was held in abeyance pending a resolution of

Elena Svenson's tax obligations in an effort to avoid an appearance of impropriety. Upon

information and belief, despite the passage of over three years, defendant Sveason has still

failed to satisfy her debt to the Internal Revenue Service.

28. On or about December 2005, both Krichevsky and Svenson moved out of the subject

premises and entered into a one-year lease agreement with Victoria Edelstein at a monthly

rent of $2,500. The lease contained an option to renew for an additional three years at 3%

annual increases.

29. At me termination of Edelstein's one year term, Edelstein requested to remain as a monm-

to-month tenant while she explored options to purchase her own residence. Plaintiff and

Defendant Svenson agreed and pat up mis apartment for sale. During this period,

Krichevsky showed the apartment to several potential purchasers.

30. On or about June 2008, Edelstein informed plaintiff that she was denied a request for a

mortgage and mat she now wanted to stay in the apartment until December 2009 and will not

let anyone in. At the time, plaintiff had an interested purchaser for the subject premises. As

such, Michael Krichevsky informed Edelstein that he would not renew her lease.

Nonetheless, Edelstein refused to vacate. Further, Edelstein refused to allow potential

purchasers access to view the apartment

31. Upon information and belief, between. June 2008 and present, there were at least three (3)

potential purchasers interested in the subject premises, all of whom were denied access by

Edelstein to view the apartment Upon information and beHef, all three potential purchasers

purchased different units in the same condominium complex.

32, On or about August 2008, Krichevsky and Svenson commenced a summary holdover

proceeding against Edelstein in order to recover possession of the subject premises (Kings

L&T Index 95633/08). Plaintiffs intent was to sell the condominium unit uporffecovery of

possession.

33. During the pendency of the holdover proceeding, Edelstein alleged in open court that prior

to holdover preceding started, she and Boris Kotlyar, as tenants, had entered into a one year

lease agreement with Svenson, as landlord, commencing in October 2008 at a monthly rent

of approximately $2,825.00 per month.

34. Said lease agreement was well below market rent at that time which would demand, no

less than $3,400.00 per month. Additionally, said lease was fraudulently entered into

without plaintiffs knowledge or consent

35. Upon information and belief, since August 2008, Svenson has collected and retained all rent

monies received from Edelstrn though she does not contribute in any regard to the fiscal

responsibilities associated with the subject unit

AS AND FOR A FIRST CAUSE OF ACTION AS AGAINST DEFENDANT SVENSON

Breach of contract/oral agreement

36- Plaintiff repeats and realleges each and every allegation in paragraph 1-35 with the same

force and effect as if fully set forth at length herein.

7

37. Svenson's Mure to pay any carrying costs and expenses associated with the subject

condominium unit constitute a breach of the parties' oral agreement to equally share, all

costs and expenses.

38. Moreover, Svenson's offer of a lease agreement to Edelstin during the pendency of a

summary holdover proceeding commenced by both Krichevsky and Svenson constitutes an

intentional breach of the parries' agreement to recover possession of the subject premises,

and thwarts Haintiffe ability to sell the unit

39. Svenson's actions have substantially damaged plaintiff in an amount to be determined at

trial, but no less 'than $600,000.

AS AND FOR A SECOND CAUSE OF ACTIOJN AS AGAINS DEFENDANT SVENSON

Unjust Enrichment

40. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-39 with the

same force and effect as if My set forth at length herein.

41. Defendant Svenson has received the benefit of the payments made by Plaintiff to purchase

subject premises and acquired half of me interest in it Svenson has not paid her share to

purchase said premises thought promised to do so.

42. Defendant Svenson has received the benefit of the payments made, and continued to be

made by plaintiff to cover all costs and expenses associated wife the subject condominium

unit Svenson has not paid her share of the expenses, though demands have repeatedly been

made.

8

43. la equity and .in good conscience, Svenson should be ordered to pay her share of the

carrying costs and expenses, and, should be ordered to transfer all rent monies collected

from the subject premises to plaintiff

44. Svenson has been unjustly enriched at the expense of plaintiff in an amount to be

determined at trial, but no less than $500,000.

AS AND FOR A THIRD CAUSE OF ACTION AS AGAINST DEFENDANT SVENSON

Waste

45. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-44 with

the same force and effect as if fully set forth at length herein.

46. Svenson has committed waste upon the subject premises, by, among other things, raffing to

pay her personal income taxes for the 2002 fiscal year, thus causing a federal Hen to be

placed on the property, and, by failing to collect market rent for the subject premises.

47. Svenson has committed waste upon the subject premises by failing to contact IRS and her

accountant to work out payment plan after Plaintiff hired an accountant for Defendant

48. Svensorfs actions have caused plaintiff damages in an amount to be determined at trial,

but no less than $ 150,000.

49. Defendant's actions were willful, wanton and negligent, and as such, plaintiff is entitled to

punitive damages in the sum of $750,000.

AS AND FOR A FOUTH CAUSE OF ACTION AS AGAINST DEFENDANT SVENSON

Conversion


same force and effect as if fully set forth at length herein.

51. Svenson has refused to provide plaintiff with Ms share of profits derived from the rental of

the subject premises.

52. As such, Svenson has wrongfully converted plaintiffs property to her own. By reason of Hie

foregoing, plaintiff has sustained money damages in the sum to be determined at trial, but no

less 1han$ 15,000.

53. Defendant's actions were willful, wanton and malicious, and as such, plaintiff is entitled to

punitive damages in the sum of $50,000,

AS AND FOR A FIFTH CAUSE OF ACTION AS AGAINST DEFENDANTS SVENSON,

EDELSTEJN AND KOTLYAR

Tortious Interference with Prospective Economic Relationships


same force and effect as if folly set forth at length herein.

55. Defendants have intentionally and knowingly interfered with Plaintiffs prospective

economic relations by: a) failing to provide access to potential purchasers to the

apartment, and b) by entering into a.lease agreement without Plaintiffe knowledge or

consent during the pendency of a holdover proceeding to recover possession of the

premises. Defendants were aware of Plaintiffs intent to sell the subject premises.

10

56. Defendants have intentionally and knowingly interfered with Plaintiffs contractual

obligations and ability to pay expenses associated with subject premises by abuse of process,

malicious litigation and disobeying the Judge's Bunyan order to turn $80UU,Uirof rent to

Plaintiff. As a result of the forgoing: a) Plaintiff defaulted on his mortgage obligations and all

of his properties are in foreclosure; b) Plaintiffs credit history has been destroyed; c)

Plaintiffs existing credit lines were cut off and new credit was denied. Plaintiff has been

damaged and the Defendants are jointly and severally Kable for all applicable damages under

the law, including punitive damages.

57. Based on the foregoing, Plaintiff is entitled to judgment in an amount to be determined at

trial, but no less than $800,000, which represents the amount of money prospective buyer was

wining to pay at that time.

AS AND FOR A SIXTH CAUSE OF ACTION AS AGAINST DEFENDANTS SVENSON,

EDELSTEIN AND KOTLYAR

Constructive fraud/fraudulent conveyance "



59. The alleged lease agreement entered into between Defendant Svenson, as landlord and

Defendants Edelstin and Kotiyar, during the pendency of a summary proceeding, without Hie

knowledge or consent of Plaintiff constitutes a fraudulent conveyance.

11

60. As such, the lease agreement should be deemed null and void. Plaintiff has been damaged

mi the Defendants are jrfnfly and severally liable for all applicable damages under fee law,

including punitive damages.

61. Plaintiff should be entitled to a judgment for damages in an amount to be determined at

trial, but no less than $500,000. In addition, Defendants' actions were willful, wanton and

malicious, and as such, plaintiff is entitled to punitive damages in the sum of $250,000.

AS AND FOR A SEVENTH CAUSE OF ACITONAS AGAINST DEFENDAT SVENSON

Accounting



63. From November 2001 until December 2005, the parties had agreed to pay the joint

obligations for the subject premises including but not Knitted to: down payment,

mortgage, utilities, maintenance, improvements, repairs and other expenses. Upon

information and belief; defendant has failed to pay any noteworthy portion of these

expenses.»is unknown what amounts, if any, have been contributed by defendant

64. fc addition, defendant lias rented the premises without any notice to plaintiff and has not

accounted for the rents she has presumably received.

12

65. Plaintiff lacks sufficient knowledge of the amount of rents and profits, due and owing to

him.

66. Plaintiff lacks an adequate remedy at law, as such, an accounting is required,

AS AND FOR AN EIGHTH CAUSE OF ACTION AS AGAINST DEFENDANT

SVENSON

Partition



68. Plaintiff no longer desires to hold and use the premises in common with defendant and is

entitled to an order partitioning the premises.

69. Defendant*s actions have made partition appropriate and necessary.

70. No settlement between the parties has ever been reached and the property remains titled in

the names of the plaintiff and defendant.

AS AND FOR A NINTH CAUSE OF ACTION AS AGAINST DEFENDANT SVENSON

Fraud

13



72. In' 1992 [during Plaintiff's first meeting with Defendant, she committed actual fraud by

intentionally misrepresenting her marital status and telling the Plaintiff and his fiiends mat

she is divorced while been married to Mr. Sam Svensoru As a result of mis felonious breach

of trust, Plaintiff was induced into relationship wife Defendant supporting her for more than

15 years.

73. On or about August 2000 Defendant induced Plaintiff into joint purchase of subject premises

by intentionally withholding the fact that from 1998 till 2001 she did not attend her school at

all, while false pretending to be a faithful lover and hard working student

74. On or about August 2000 Defendant induced Plaintiff into joint purchase of subject premises

by intentionally misrepresenting to Plaintiff mat in 2001 site would graduate from her

medical school, will become a doctor and will contribute to expenses associated with

purchase of subject premises, as well as to future expenses.

75. In 1994 Defendant feloniously breached Plaintiffs trust and used. Plaintiff to commit

14

marriage/iiranigration fraud by inducing Plaintiff Michael Krichevsky to name his new bom

son David Svenson instead of David Krichevsky. Defendant intentionally withheld the truth

about her marriage with Sam Svenson, while been supported by Plaintiff Eving in Ms

apartment and naming Plaintiffs son David Svenson in order to submit false paperwork to

Immigration Authorities as if "David Svenson, Elena Svenson and Sam Svenson" is "real"

family.

76. As a result of fee forgoing, Plaintiff has been damaged and the Defendant is Hable for all

applicable damages under the law in the amount to be determined at {rial

AS AND FOR A TENTH CAUSE OF ACTION AGAINST DEFENDANT SVENSON

Constructive Trust



15

78. The law of equity requires that a constrietive trust be created on behalf of Plaintiff as well as

Plaintiffs son David in order to prevent unjust enrichment by Defendant

79. Plaintiff and Defendant had a confidential relationship and owed each other fiduciary duty.

80. Defendant was unjustly enriched when Plaintiff transferred to -the Defendant half of the

subject premises without Defendant investing any money.

81. Defeadant promised to pay her share to acquire subject premises, but felled to do so.

82. As a result of the forgoing, Plaintiff has been damaged and the Defeadant is liable for all

applicable damages under the law in the amount to be determined at trial

AS AND FOR ELEVENTH CAUSE OF ACTION AS AGAINST DEFENDANT

SVENSON

16

Promissory Estoppel



84. The Defendant should be held liable under doctrine of Promissory Estoppel as she on or

about August 2000 made a clear and definite promise to contribute to down payment of

subject premises at the time of closing, which was scheduled to be a one year later. Plaintiff

reasonably relied on defendant's promise to his detriment and was injured by having to pay

virtually all expenses when Defendant did not keep her promise.

85. As a result of the forgoing, Plaintiff has been damaged and the Defendant is liable for all

applicable damages under the law in the amount to be determined at trial.

AS AND FOR TWELFTH CAUSE OF ACTION AS AGAINST DEFENDANTS

SVENSON, EDELSTEIN AND KOTLYAR

17

Fraud



87. Defendants committed Fraud upon the Court hy conspiring to hire one attorney who

simultaneously represented them in three deferent actions against Plaintiff even thought

"there was conflict of interest" between Defendants. Said attorney employed prohibited by

law and/or ethics practices causing Plaintiff great financial damage. •

3. As a result of the forgoing Plaintiff has been damaged and the Defendants are jointly and

severally liable for all applicable damages under the law, including punitive damages.

AS AND FOR THIRTEENTH CAUSE OF ACTION AS AGAINST DEFENDANTS

SVENSON, EDELSTEIN AND KOTLYAR

18

Intentional Infliction of Emotional Distress



90. Solely as a result of the Defendants' above mentioned torts and actions Plaintiff was caused to

suffer serious personal injuries to mind and body, and further, mat Plaintiff was subjected to

- great physical pain and mental anguish.

91. Defendants' conduct was willful, wanton, reckless, malicious and/or exhibited a gross

indifference to, and a callous disregard for safety and the rights of others, and more

particularly, the rights, life and safety of Plaintiff

92. By reason of the foregoing, Plaintiff was severely injured and damaged, sustained severe

nervous .shock and mental anguish, great physical pain and emotional upset, some of which

injuries are believed to be permanent in nature and duration., and Plaintiff will be permanently

caused to suffer pain, inconvenience and other effects of such injuries; Plaintiff incurred and

in the future will necessarily incur further hospital and/or medical expenses in an effort to be

cured of said" injuries; and Plaintiff will be unable to pursue his usual duties with the same

degree of efficiency as prior to this action, all to Plaintiffs great damage.

93. As a result of the forgoing, Plaintiff has been injured and the Defendants are liable for all

applicable damages under the law in the amount to be determined at trial., including punitive

damages.

19

AS AND FOR FOURTEENTH CAUSE OF ACTION AS AGAINST DEFENDATS

SVENSON, BDELSTEIN AND KORLYAR

Negligent Infliction of Emotional Distress

94. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-93 wife thei


95. Solely as a result of the defendants' negligence, carelessness and recklessness. Plaintiff was

caused to suffer serious personal injuries to mind and body, and farther, that Plaintiff was

subjected to great physical pain and mental anguish,

96. The aforesaid occurrence was caused by the negligence of the Defendants, without any

culpable conduct on the part of Plaintiff

97. By reason of the foregoing, Plaintiff was severely injured and damaged, sustained severe

nervous shock and mental anguish, great physical pain and emotional upset, some of which

injuries are believed to be permanent in nature and duration, and Plaintiff will be permanently

caused to suffer pain, inconvenience and other effects of such injuries; Plaintiff incurred and

in tie future will necessarily incur further hospital and/or medical expenses in an effort to be

cured of said injuries; and Plaintiff will be unable to pursue bis usual duties with the same

degree of efficiency as prior to this action, all to Plaintiffs great damage.

98.

99. As a result of the forgoing, Plaintiff has been injured and the Defendants are liable for all

applicable damages under fee law in the amount to be determined at trial, including punitive

damages.

100. WHEREFORE, the plaintiff demands dismissal of defendants' answers and judgment

awarding damages as follows:

1. On plaintiffs first cause of action, judgment in the amount $600,000 plus additional

sums to be determined at trial; and,2. On plaintiffs second cause of action, judgment in fee amount of $500,000 plus .

additional sums to be determined at trial; and,

3. On plaintiffs third cause of action, judgment in the amount of $150,000 plusadditional sums to be determined at trial, plus punitive damages in me amount of

$750,000; and,

4. On plaintiffs fourth cause of action, judgment in &e amount of $15,000, plus

additional sums to be determined at trial, plus punitive damages in the amount of

$50,000; and,5. On plaintiffs fifth cause of action, judgment in the amount of $800,000; and, ..

6. On plaintiffs sixtfe cause of action, for an Order deeming me alleged lease agreement

null and void, and judgment in the amount of $500,000 plus additional sums to be

determined at trial, plus punitive damages in the amount of $250,000; and,

7. On plaintiffs seventh cause of action, that 'defendant be ordered to account for therents and profits of the real properly and of all dealings with and transactions

concerning same; and,

8. On.plaintiffs eighft cause of action, for a partition and division of the real property

21

described in the Complaint be had, according to the respective rights of the parties'interest therein, subject to the mortgage now of record against the property, and, if a

-partition cannot bermad^aq&Qatgreatnreaidicj^^ that a sale of the__

property be had and a division of the proceeds thereof among the parties according to

their respective rights and interest after payment of the lawful costs and disbursements

of this action; and,

9. On plaintiff s ninth cause of action judgment in the amount of $ 1,000,000; and,

10. On plaintiffs tenth cause of action judgment in favor of plaintifij and,

11. On plaintiff's eleventh cause of action judgment in iavor of plaintiff, and,

12. On plaintiff twelfth cause of action judgment in the amount of $1,000.000; and,

13. On plamtifY's thirteenth cause of action judgment in the amount of 1,000,000; and,

14. 'On plaintiffs fourteenth cause of action judgment in the amount to be determined at

trial

Dated: Brooklyn, New YorkFebruary 16,201

Michael Krichevsky, Pro Se2502 86th StreetBrooklyn, New York 11214718-687-2300

BIANCANELLO & BLANCANELLO, P.C.Attorneys forEELENA SVENSON500 Jericho TurnpikeMneola, New York 11501

NICHOLAS RATUSH, S.Attorney for Defendants EDELSTEIN AND KOTLYAR299 Broadway, Suite 605NewYoikyNewYoric 10007

22

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS

MICHAEL KRICHEVSKY,Plaintiff,

-against-

INDEX NO. 33343/2008

AFFIDAVIT OF MAILSERVICE

ELENA SVENSON, VICTORIA EDELSTEIN & BORISKOTLYAR,

Defendants.

STATE OF NEW YORKCOUNTY OF KINGS

Sharrira Taylor, being duly sworn, says:

I am not a party to the action; I reside at Brooklyn, New York, and I am over 18 years ofage.

On the /'7 day of February, 2010,1 served the within Notice of Cross-Motion togetherwith Supporting Affidavit, by depositing true copies thereof enclosed in a post-paid wrapper, inon ofBcial depository under the exclusive care and custody of the United States Postal Servicewithin New York State, addressed to the following at the last known address set forth below:

BIANCANELLO & BIANCANELLO, P.C.Attorneys for Defendant Elena Svenson500 Jericho TurnpikeMmeola, New York I1501

NICHOLAS RATUSH, S.Attorney for Defendants Edelstein299 Broadway, Suite 605New York, New York 10007

Sworn to before meon February J7 ,2010

* z 4*,. ,1-Ci \, ,N .:>.•". ^5!i\State of New York

No- 24^98570Qualified^ iWjs County

Commission £xpiresxJiiy 27,20

-..Notary Pubfc State of New York

Mo. 24-4399570QuaBfiedb Kings 001

Expires Jdy27

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS

Index No. 33343/2008

MICHAEL KRICHEVSKY,Plaintiff,

-against-

ELENA SVENSON, VICTORIA EDELSTEIN & BORIS KOTLYAR,Defendants.

NOTICE OF CROSS-MOTION, SUPPORTING AFFIDAVIT

The documents herein are hereby certified pursuant to 25 NYCRR 130-1,1-A

By: •

EXHIBIT C

At an IAS Term, Part 8 of the Supreme Court of feeState of New York, held in and for the County ofRings, atthe Courthouse, at Civic Center, Brooklyn,New York, on,the 30th day of/September, 2011.

PRESENT: '

HON.BERTA.BUNYAN/Justice.

-XMICHAEL K&CHEVSKY,

•; - against -

ELENA SVE^SON, •' VICTORIA BOELSTEIN, andBORBKOTLYAR,

Plaintiff,

Defendants,

• The'following papers' numbered 1 to 21 read herein:

Notice .of Motion/Order to Show Cause/

. Petition/Cross. Motion and

Affidavits (Affirmations) Annexed . _ :

•Opposing Affidavits-(Affirmations)

Reply Affidavits (Affirmations)

Siirreply . . . ,

Order entered Aug. 4,2009; Order entered Oct. 15,2009 r

Plaintiffs Order to Show Cause of July 7,2009, as withdrawn_

DECISION AND OKDER

Index-No. 33343/08

Paners Numbered

1-2:4-5: 7-8: 9-10: 13-14

3:6: • 1L12:'-15-16

•• ; • • 17

-1-8 •

19-20

In this action for, inter alia, breach of. an oral agreement, constructive trust, and'

fraudulent conveyance, the following motions and cross- motions haye.been consolidated• • _i

for disposition, and upon consolidation:

• (a) The cross-motion of-the plaintiff Michael Krichevsky-.(plaintiff) for .leave,

pursuant to CPLR 3Q25 (b), to serve his proposed amended complaint is denied (sequence.'

'No, 4). • • • " ' • .

(b) Plaintiff's motion for an order, pursuant to CPLR 3126, to strike the answer and

counterclaims-of the defendants Victoria Edelstein (Edelstein).and Boris Kotlyar (Kotlyar)

is.denied (sequence No. 5).

(c) The motion of Edelstein and Kotlyar for an order-, pursuant to CPLR 3124, to

compel plaintiff to serve a response to their Demand for Bill of Particulars,. Discovery and

Inspection, and to their Demand for Information, each dated February 15, 201-0, is denied

(sequence No. 6), ' '

(d) Plaintiffs motion for an order to restore to the court's calendar his Order to Show

Cause, dated July 7,2009 and withdrawn by him' on February 3,2010, and' to -reargue said

order to show cause is denied (sequence No. 7).

. ' (e)Plaintiffs cross- motion for an order disqualifying Nicholas Samuel Ratush, Esq.,.-

of counsel- to Herbert Marek, Esq., attorney of record for Edelstein and Kotlyar, is

conditionally granted subject to a further order of the court, as -more fully set.forth in.

Section E-her-ein (sequence No: 9). . ' ' .

Background

In November 2001, plaintiff and defendant Elena Svenson (Svenson), an unmarried

couple -with Iheir then seven-year old son, purchased an apartment at 130 Oceana Drive •

West, Unit 5D (Block '8720, Lot 1245) in Brooklyn, New York (tjie apartment), for the sum

of $420;,QQO. The deed for the apartment defined the "grantee" to be plaintiff and-Svens.on,'

"as "husband and wife" (capitalization omitted). To finance their purchase, plaintiff and

Svenson-obtained a.$37.8,000 mortgage from JPMorgan Chase Bank.' In August 2005,'

plaintiff and.Svenson obtained a second mortgage .in the.amount of $210,596.24 from

.Washington Mutual Bank, FA (WaMu), which mortgage, when consolidated with the

$378,000 mortgage-from JPMorgan Chase, was consolidated into a first mortgage in the

. principal amotmt .of $565,000 held by WaMu, On August 12,2009,' WaMu assigned this

: mortgage to Bank of America, NA. This mortgage is currently in foreclosure {see B'ank. of

•America, N,A. v Krichevsfy et al, index No, 22088/09 [Sup Ct, Kings County]).1 In

acidition, the Board of Managers of the apartment building filed a-notice of unpaid common

' charges in the- sum of $4,479.19 for the period of February 1, 2009 through August 31,

.2009, .as -well as brought -a collection suit against plaintiff,. Svenson, -and others .on August

31,2009 (see Board of Managers of Oceana Condominium No.. Two v Victoria Edelstein, et

al.; index-No. 99601/09 [Civ Ct, 'Kings County]).

Some time before December 2005, the personal relationship between plaintiff and

Svenson had deteriorated, and they moved out of the apartment In December 2005; plaintiff

and Svenson-entered into an apartment lease with defendant Edelstein. When the initial one-

yearlease term expired in December 2006, plaintiff and Svenson permitted Edelstein to

rent the apartment on a montn-to-month basis. According to plaintiff, Edelstein desired to

remain in the apartment for as long as she was looking to buy her own residence and that, as

soon as she would qualify for financing, she wouldmove out. When, in June 2008, Edelstein

1- InNoveraber 2003, plaintiff and Svenson obtained from JPMorgan ChaseBankan $85,000line of credit 'secured by the apartment This line-of credit was refinancedwitjia $183,267: securedErie of-credit ftbm United Medical Bank, FSB in May 2006. In May.2010, Wells Fargo Bank, N, Al,•as assignee of United Medical Bank, obtained a default judgment against plaintiff in the' amotmt of

' $ 198,430^71 (see Wells Fargo Bank, N.A, vKrichevsky, indexNo. 4991/10 [Sup Ct, Kings Gotmty]).

' • ' . •• ' 3 • • • . ' . '

continued to-rent the apartment, however, plaintiff informed hex that he had a potential

.purchaser and that, upon' sale, her month-to-month tenancy would be terminated so that the. • • .

' apartment could be delivered vacant Edelstein then refused access to plaintiffs, potential,

purchasers .to -see the apartment In August 2008, plaintiff and Svenson commenced-a

•-holdover, proceeding to evict Edelstein (see Krichevsky, et al v Edelstein,, L&T. Index No.

' 95633/08 [Civ Ct, Housing Part, Kings County]). In the course of the holdover-proceeding,

Svenson, allegedly without plaintiffs knowledge or consent, signed with. Edelstein and her

boyfriend, defendant Kqtlyar, a renewal apartment lease, dated September 20,200$, for an

• initial one-year term commencing October 1, 2008. The holdover proceeding was-.

discontinued-on November 20, 2008. Edelstein with Kotlyar continued to reside in the .'.".

'apartment, while Svenson continued to collect rent from Edelstein and' Kotlyar but without

.sharing .any portion of it with plaintiff. • • '

In July 2009, plaintiff, after not having received his share of the apartment rent, !

caused the magnetic, key cards which Edelstein and Kotlyar had used to gain access to the

building amenities (pool, gym, private beach entrance, among others) to be suspended.

Eventually, Edejstein and Kotlyar moved out of the apartment, having made their last rent

payment cm Octpber-.31,2009.

Procedural History

• iIn December 2008, while Edelstein and Kotlyar were still residing in the apartment,•' !

plaintiff instituted the instant action against them and Svenspn. Plaintiff (in 5-7 of hisj

verified complaint) alleged that j

"Defendant Elena Svenson has breached her oral .agreement toshare all costs and expenses associated with the subject '[apartment], created waste in the subject [apartment],fraudulently converted-rent monies collected from the subject[apartment] to her own use, andhas intentionally interfered withPlaintiff's ability to sell the subject [apartment]. • •

"Defendants Victoria Edelst[e]in and Boris .Kotlyar haveintentionally interfered with Plaintiffs ability to selithe subject[apartment] as well. I

iI • •

• • "On or about October 2008, Defendants! entered into a• '' .fraudulent lease agreement [for the subject apartment] with the. •

sole intent of harming Plaintiff." i

•Based on the .aforementioned allegations as they are more fully amplified elsewhere in.thei 'i

complaint, plaintiff asserted claims for: (a) breach of contract,. (b) unjust, enrichment,j*

(c) waste, (d) conversion, (e) partition, and (f) an accounting, in each case, against Svenson

•individually,, as weE as claims fon (g) tortious interference with prospective economicj ' .

• relationships and (h) constructive fraud and fraudulent conveyance, in each case, against

Svenson, Edelstein, and Kotlyar collectively, Plaintiff, in his complaint, sought

i

eornpensatory and punitive damages, a declaration that the renewal-lease was void, and aI . * " .

partition and sale of the apartment. i • •

M February 2009,. Edelstein and Kotlyar, by their attorney Herbert -Marek, Esq.,.

interposed an unverified, answer, denying the material allegations of the complaint and

'• - - . .asserting a. cross-claim against Svenson for contribution and indemnification, .as well as a-

•' ' • ' counterclaim against plaintiff for attorneys' fees and court costs incurred-by them 'in .this

• litigation. Plaintiff has not replied to the counterclaim.

. . ;• - I n - July. 2009, Svenson, by her attorney Michael P. Biancanello, Esq., filed a notice'

' • . . .of appearance in this action. Although Svenson has interposed-no answer to the.coraplaint,

plaintiff, to date, has sought no default judgment against her.

• • ' . " " " 'By Order to Show Cause .with Temporary Restraining Notice, dated July 7,.2009 in-

motion sequence No. 2 (plaintiffs OSC), plaintiff sought, for the most'part, an order:

. . --(ay-restraining Edelstein and Kotlyar from paying any furtner rent to-Svenson under the

• ' • renewal lease, (b) restraining -Svenson from disposing of the proceeds of any rent she 'had

-received from Edelstein and Kotlyar since October 1, 2008 under the renewal lease,

• • (c) enjoining Svenson from conveying her interest in the apartment, (d) compelling.

Edelstein, Kotlyar, and Svenson to account for all rents paid or received -since October 1,

• : • 2008 under the renewal lease, and (e) directing that 'all future rent be paid to plaintiff; or

.. • ' . deposited- in escrow with plaintiffs counsel, to be used to pay the- mortgage debt and

• • common charges on the apartment While the relief requested in plaintiffs OSC remained

.' , ••. ' subjudice, this -court -issued an irtferim order entered August 4, 2009 (the interim order);

•which,-among other things: (a) directed defendants- to pay certain amounts to plaintiffs

•; . ' ' counsel, (b) adjourned until September -16,2009 plaintiffs OSC, and (c) marked'il. "find"

./ • for that date.2 Thereafter, plaintiff assumed his own representation when his.counsel

. withdrew on January 30, 2010. The clerk's minutes next indicate that on.Wednesday,

: - - February 3, 2010, plaintiff withdrew his OSC in its • entirely, •unconditionally, and

• ccanpletely.

' The instant action is only a portion of the ongoing litigation between plaintiff and

' • ' ... Syenspn. In 2008, .Svenson brought a support proceeding against plaintiff in -the -Kings

. • . County .Family Court (see Matter of Svenson v Krichevsky, File No. 142040). Svenson.was •

represented in that proceeding initially by attorney Yoram Nachlmosky. and later by

attorney Yonatan Levoritz. The current status of the support proceeding does not appear in

• the record before this court. ' • • . •

In November 2010, plaintiff, acting pro s.e, commenced another action' against

• Svenson as well as against her current or former attorneys NacMmosky and Levoritz in the

. • -support proceeding .(see Krichevsky v Levoritz, et al, index No. 24714/10 [Sup Ct, Kings

• . County.]). In the subsequent action, plaintiff asserted, inter alia, .claims of aiding and

abetting the commission of tort, concert of action, concealment or destruction of evidence,

malicious abuse of legal process, fraud upon the court, and negligent infliction of emotional

-. , distress'. Plaintiffs subsequent action .was based, for the most part, upon- the alleged.

misconduct -of Svenson and her attorneys in the support proceeding. By order, dated

. entered April 13,2011, the court (Bayne, J.) granted the motions of attorneys Nachimqsjky'

z Thereafter, by order entered October 15, 2009, this- court, inter alia, adjoiorhed toOctober 2-1,2009 the-consideration of plaintiffs OSC,'

• ' . ' . ' ' • ' ' • . 7

and Levoritz,'.dismissing the subsequent action insofar as asserted against them. Although

' Svensonappearedpro^einthesubsequentactiononDecember21,.2010,'shehasinterp'osed

• • ' : .no answer, but plaintiff, to date, 'has sought no default judgment against her, •

•• . This recitation completes the factual and procedural background of- this.actLQn. The

court now turns to the consideration of the instant motions and 'crossTinotions. '" .

Disposition of Motions and Cross-Motions.

A.- Plaintiff's Cross-Motion to Amend His Complaint (Seq, No. 4)• ;

• . . .Plaintiff .crqs.s-mpves for leave, pursuant to CPLR 3025 (b), to serve Ms proposed

amended complaint, which adds new claims for: (a) fraud, (b) constructive, trust, and'

(c) promissory estoppel, in each case, against Svenson individually, and new claims for

(d) fraud,, (e) intentional infliction of emotional- distress, and (f) negligent infliction of

• . - emotional distress, in each case* against Svenson, Edelstein, and Kotlyar collectively.

' - •Plaintiff avers (in ^f 2 of his supporting affidavit) that he discovered these.additional causes

. • ' of action "[•alftersifting.ihrough [his] .evidence,"

' .Pursuant to CPLR 3025 (b), '-'[a] party may amend Ms pleading . . . at any time by

• leave-of court... Leave, shall be freely given upon such terms as may be just including the

. granting of costs '.and continuances." The court finds that none of the proposed causes of

. action have .any merit

• • Plaintiffs proposed ninth cause of action for fraud against Svenson -is untimely, as it

.. • ' is; based on events that occurred between 1992 and 2000, or more than six years,after .the. • • .

'commission of the alleged fraud (see CPLR 213 [8]). Moreover, plaintiff is. not entitled, to

: •• . 8 •

•, ' • -the'-benefit of the two-year "discovery rule" in fraud cases because lie does not allege wiry•.

ite could not -discover tiie alleged fraud by February 2009, or two years before .the date of"

• . ' the proposed amended complaint (see CPLR 203 [g] and 213 [8]).

• Plaintiffs proposed tenth cause of action for constructive trust against Svenson is

likewise untimely, as it is'based on Svenson's alleged fraud in connection with the purchase

'" 'of-•flip apartment in November 2001 (see CPLR 213 [8]).

. • Plaintiffs proposed eleventh cause of action for promissory, estoppel against

• • Syenson is also untimely, as it is based on a promise allegedly made by Svenson to plaintiff

'• •"-. • in August -2000 -to .contribute money to the purchase .of the apartment in November 2001

. (seeCPLR213 [1], [2]).

'Plaintiff's proposed twelfth cause of-action for fraud against Svenson, Edelstein, and

- - : - Kotlyar Jacks- the necessary particularity (see CPLR 3016[b]),3 .- . .

• 'Plaintiff5 s. proposed thirteenth cause of action for intentional' infliction of emotional

distress against Svenson, Edelstein, and Kotlyar fails- to state a valid claim (see Fischer v

Maloney, 43 NY2d 553,557 [1978] ["An action may lie for intentional infliction of severe

• 'emotional distress for conduct exceeding all bounds usually tolerated by decent society"]

.[internal .quotation marks omitted]). This cause of action is also- untimely "(.see

CPLR 215 [3]). •

. • [ ' ' 3- This proposed cause of action alleges (in jf 87) that 'td]efendants committed Fraud u" • ' . the'-Cqurtby conspiring to hire one attorney who sunultaheously represented'them in three different,

actions' against Plaintiff even thmigh[] 'there was conflict of interest* between Defendants. Said/ ' ." attorney employed-prohibited by law and/or eiMcs practices causing Plaintiff great financial

•damage.".

• • • • • :• . . •• " ' 9 ' ' '•" "'• • '•

• Plaintiff's proposed fourteenth and final cause of action for negligent infliction of

emotional distress against Svenson, Edelstein, and Kotlyar likewise fails to state a. valid

claim (see Perry v Valley Cottage Animal Hosp., 261 AD2d 522, 522-523 [2dDept.l999]

["a cause of action to recover damages for negligent infliction of emotional distress.,. must

generally be premised upon conductthatunreasonably endangers a plamtifFs physical safety

or. causes the plaintiff to fear for his or her own safety"]).

B. ' Plaintiff's Motion to Strike Answerand Counterclaim of Edelstein and Kotlyar (Seq. No. 5)

Plaintiff next moves for an order, pursuant-to CPLR 3126, tp strike me answer and

counterclaims of Edelstein and Kotlyar and'to preclude them from amending -their .answer.

In support of .this motion, plaintiff argues that, since Edelstein and Kotlyar have failed to'

comply with this .court's interim order directing them to make certain payments to plaintiff

or his former counsel, their answer should be stricken. Plaintiff's motion is denied for two.

reasons. As an-initial'matter, CPLR 3126, which is intended to penalize parties for-non-

. compliance with discovery orders,- does not apply to substantive orders, and, more

importantly, the interim order, which was issued in furtherance of plaintiff s OSC, is no "

longer, enforceable in light of plaintiff s withdrawal of his OSC,

C. Motion of 'Edelstein and Kotlyar to Compel.Plaintiff to Provide Discovery (Seq. No. 6) '

Edelstein and Kotlyar move for an order, pursuant to CPLR. 3124, compelling

plaintiff to serve a response to their Demand for Bill of Particulars, Discovery -and

Inspection, as well as to their Etemandfor Information, each dated February 15,2010, This

• - . . • • . • i o ' • - , • ' • - .

motion is premature, as no preliminary conference has been held and no discovery

•schedule has been set

. D. ' Plaintiff's. Cross-Motion to Restore His OSC (Seq. No. 7)

Plaintiff cross-moves for an order to restore to calendar his OSC, -which he claims he

erroneously withdrew on February 3, 2010, and to reargue said motion. According, to •

plaintiff (in ^f 3 of Ms supporting affidavit), "[wjithdrawal of this motion [OCS in sequence

'No- 2] in whole was not the intention of Plaintiff' (emphasis added). .Rather, plaintiff avers,

that he only "intended to withdraw demand for future rent payments from Defendants

.Edelstejn and Kotlyar since they vacated Plaintiffs premises and there was no-reason left.to

'demand.-rent payments hi the future," but that "the issue of past rent .due and willful

• misconduct of all defendants and their attorneys for not honoring [the] stipulated [interim]

Order-"... was not argued" (ffl 4-5), The motion is opposed by all defendants.

The-cburt's review of plaintiffs OSC, as contained in the clerk's minutes, indicates •

that plaintiff withdrew his OSC on February 3,2010. There is no indication on the face .of

plaintiffs OSC that he withdrew it "partially" as he now claims. Plaintiff concedes thathe

was in court on Wednesday, February 3,20.10, and that he withdrew at least a portion of his

OSC-. "Whether he intended to withdraw all or only a portion of his OSC cannot be verified

. more than a year later without reviewing the clerk's notation on plaintiffs O.SC, and such

notation indicates that plaintiff withdrew his OSC without reservation.. -If plaintiff,, who

claims to be- a paralegal working for a law firm and-who opted to represent, himself shortly

11

before the February 3rf motion date,4 desired to withdraw only a portion of Ms OSC, he

should have requested a stipulated order limiting Ms withdrawal to the extent that he now

asserts he desired but failed to request Accordingly, plaintiffs withdrawal of Ms OSC in.

•toto in open court will not be disturbed. Consequently, the interim order, -wMch had been

issued in fiulfterance of plaintiff's OSC, ceased to be effective:upon, withdrawal of the

' underlying OSC

' To reiterate and to make this point clear: the court will not, based on plaintiffs.self-

• serving statement that he did not intend to do what he did in open couxi, reinstate his OSC'

• • ' which he-withdrew in open court more than a year ago. The court cannot try to fathom

plaintiff's subjective, intentions .as to what-'he actually meant when he withdrew his OSC. -

'. E. Plaintiff's-Cross-Motion to Disqualify Nicholas S. Ratush, Esq. (Seq. No. 9)

.'Finally, plaintiff cross-moves to disqualify Nicholas Samuel Ratush (Ratush)

(Attorney Registration No. 4387759), now of counsel to Herbert Marek,.Esq., attorneyof

record for Edelstein and Kotiyar, from representing them in this action because of, among

other things, a conflict of interest. In support of this motion, plaintiff alleges that to recover

control and ownership of the apartment, he and Svenson had. initiated a holdover proceeding

against'Edelstein and, in tMs regard, had hired Robert Rosenblatt as counsel.. At that time,

4;-Plaintiff is a paralegal witk the law firm of Wlttenstein & Associates in Brooklyn. • His last. ' counsel in this action, Law Offices of Daniel A. Singer at 245 Fifrn Avenue in .Manhattan,'was a

successor-counsel tp Balsamo & Rosenblatt IXP at 80;Livingston Street in BrooMyn, which plaintiff•utilized to institute this action. In addition, plaintiff, at some point, engaged Charles A- Petitto, Esq.

': •. . . -to prepare a motion ibr 'an order transferring the landlord-tenant case from the Civil Court,.Housing• • Part'to this court, and for leave to amend the complaint to demand the partition and/or sale of the

apartment (sequence No. 1). Plaintiff subsequently withdrew that motion. .

'.'• . ,' '"'""' ' - 1 2 • •

: V . attorney Naehirribvsky represented Edelstein and Kotlyar. Simultaneously, Nachimovsky

. .. • was-defending Svenson in this action (Svenson is now represented by new counsel).

' According to-plaintiff, Ratush, while working for Nachimovsky, was simultaneously

' •; • representing Svenson in the holdover proceeding as well as representing Edelstein and

"Kotlyar in "this action. Plaintiff relies on two documents which he-includes with his-

' •• . supporting affidavit:

(a) a fa?c cover sheet, dated December 22, 2008^ from Ratush (on the

... ; • letterhead of Nachimovsky) to plaintiffs former counsel Rosenblatt: (preferring to

flie holdover proceeding, (ii) stating in the message section, "Kindly see attached,"

' - • ' • . and-(iii) enclosing a stipulation of .discontinuance for the holdover proceedingy.as.

• . executed by Svenson; and

' .." (b) a fax cover sheet, dated February 10,2009, from Ratosh (o.n the letterhead

• . . • • ' . ' ofNaenimovsky) to plaintiff's-former counsel Rosenblatt, referring to the.instant

. / , . action and stating, in the message section the following (as quoted in its entirety): .

• • • ' . ' • ' ' "DearMr. Rosenblatt, . .

'This is to confirm your conversation today with' • ' . . . - Mr. Nachimovsky. Please, take notice that we no -longer

'• ' . represent Mrs. Svenson, Mr. Kotfyar or Mrs. Edelstein in. .'connection with both Supreme and Civil Court actions . .

. ' • . . brought by your client [Le.r plaintiff]. This will also• . ' ' • confirm that you will 'not move for a default against'

'Mr. Kotlyar and Mrs. Edelstein in either action at leastuntil February 25, 2009 and allow them time 'to retainnew counsel.

13 '

If you have any questions, please do not hesitate tocontact us" (emphasis added).

Plaintiff avers that in October 2010, Ratush appeared in court in this action as

counsel to Marek who is representing Edelstein and Kotlyar.

In' response, Ra.tu.sh concedes that, he is of counsel to Marek, the attorney for

Edelstein and Kotlyar. Ratush, however, maintains that he and Marek never represented

Svenson, never gave her legal advice, and never prepared documents for her.5 Ratush

points out that-he sent the December 22, 2008 fax while he. was working-per diem for.

Nachimoysky, who was then representing Edelstein and Kotlyar, but that he (Ratush) did

not prepare the-stipulation of discontinuance in the holdover proceeding. •

• Ratush explains that he generally received per diem work from Hachimovsky in late

2008 and 2.009 to cover appearances in the Housing Part of the New York Civil Court,

including in the subject holdover proceeding. Ratush-explains .that he performed no -other,

work in connection with Svenson.: Ratush claims he was not privy to .any communications

between Svenson and Nachimovsky. . Ratush points out that Marek -was retained by

. Edelstein/aiid Kotlyar, and that .Marek alsp utilizes Ratush's services.

5t Ratush has not provided any affirmation from Marek in this.regard.

14.

This motion, is resolved by the application of the-Rules, of Professional Conduct.

'Rule 1:9 (b)'(Duties to former clients) provides that

' . "Unless the former client gives informed consent, confirmed inwriting, 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 previouslyrepresented a client;

. - . - ' • • (1) whose interests are materially adverse to feat person;and

(2) about whom the lawyer had acquired informationprotected by Rules 1.6 [Confidentiality of mfonnation] orparagraph (c) of this Rule that is- material to the matter/'6 :

In addition, Rule 1.10 (Imputation of conflicts of interest) provides, in relevant part,

that: . • . .

"(c) "When a lawyer becomes associated with a fbm, the firm' . may not knowingly represent a client in a matter that is the same

as. or substantially related to. a matter in which the newly•associated lawyer, or a firm with which that lawyer was

• associate4 formerly represented a client whose interests are. ••materially adverse to the prospective or current client unless the

6- .Rule 1.9 (c) provides

"A lawyer who has formerly represented a client in a matter or whose present orformer firm has formerly represented a client in a- matter shall not thereafter.:

(1) use confidential information of fee former client protected byRale- L6 to the disadvantage of the former client, except as these

' Rideswouldpennitorrequirewimrespectto a crarent client or when• the information has become generally known; or . .

(2) reveal confidential .information of the former client protected by-Rule 1.6 except as these Rules would permit or require with respect •

' Xto a'current client" ' '

' " ' 15 '" '

EXHIBIT D

At a Term of the Family Court ofthe State of New York, held inand for the" County of Kings at330 Jay Street, Brooklyn, NewYork, on the 2nd day of April2012.

P R E S I D I N G :

HON. PAULA J. HEFNERActing Justice of the Supreme Court

In the Matter of a Proceedingfor Support under Article IVof the Family Court Act,

ELENA SVENSON,

Petitioner,

- against -

MICHAEL KRICHEVSKY,

Respondent.

-x

DECISION AND ORDER

(After filing of Objections)

Docket Number F-28901-08/10A&BObjection #'3 on Supp "A"Objection #'4 on Supp WB"!

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTERA COURT HEARING, RESULT IN YOUR COMMITMENT TO JAILFOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OFCOURT.

NOTICE: PURSUANT TO §1113 OF THE FAMILY COURT ACT, AN APPEAL MUSTBE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BYAPPELLANT IN COURT, 35 DAYS FROM THE MAILING OF THE ORDERTO THE APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYSAFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THEAPPELIANT, WHICHEVER IS EARLIEST.

The parties have been embroiled in litigation in Kings

County Family Court for four years and have had a lengthy history

before the undersigned.1 The history of this case is as follows:

On February 3, 2010, Support Magistrate Fasone issued a Final

Order of Support and directed the Respondent_to pay $2,045.00

monthly2 toward the support of the subject child, David Svenson

{d.o.b. 8/14/94), and set the arrears from the date of filing at

$31,599.42. The Respondent was directed to enroll the child in

his health insurance plan and the Support Magistrate authorized

reimbursement of Petitioner's counsel fees.

On April 22, 2010, Respondent filed Supplemental VA"

seeking a downward modification on the grounds that he lost his

job, could not afford the health insurance premium and was

disputing the amount of arrears owed. On June.-21, 2010,

1 This is the 'sixth application before 'the undersigned. The firstobjection was filed-by the Petitioner on August 18, 2009 to an interim orderof support. On October 9, 2009, Petitioner withdrew the Objection. The secondobjection was filed "by the Respondent on April 2, 2010 to the Final Order ofSupport issued by Support Magistrate Fasone on February 3, 2010. Theundersigned denied the Objection on June 2, 2010 based on procedural groundsdue to the untimely filing of the Objection. The third Objection was filed bythe Respondent on August 9, 2010 to the Support Magistrate's verbal refusal torecuse himself. The Objection was denied on procedural grounds as theObjection was not ripe for review. The fourth motion was filed by theRespondent on July 5, 2011 and decided on October 18, 2011, An objection wasfiled by the Respondent on August 18, 2011 and was denied on proceduralgrounds.

2 The Support Magistrate did not deviate from the full amount requiredunder the Child Support Standards Act. The Petitioner'-s adjusted gross, incomewas determined to be $20,800.00 and the Respondent's adjusted gross income$145,145.40. The combined parental income was determined to be $165,945,40 ofwhich the Petitioner's pro rata share was calculated at 13% and theRespondent's pro rata share at 87%. Pursuant to the Child Support StandardsAct, the Support Magistrate determined the annual child support obligation forthe parties' child was 17% of their adjusted gross income or $22,100.00 forthe combined income up to $130,000.00. The Respondent's share of the first$130,000.00 is $1,602.25 monthly. The Support Magistrate- applied thestatutory percentage of 17% to the income over $130,000.00, which, was$35,945.40. The Respondent's pro rata share was $443.03 monthly. TheRespondent's share for the income below $130,000($1,602 .25} when combined withthe Respondent's share for the income above $130,000.00, ($443.03), resultedin a monthly order of $2045.28 for the Respondent.

Petitioner filed Supplemental UB" alleging that Respondent

violated the Order of Support and Respondent failed to maintain

the subject child on his health insurance. Subsequent motion

practice ensued.

On July 26, 2010, Respondent filed Supplemental C, an Order

to Show Cause for a Temporary Restraining Order to stay the

current Order of Support and for the entry of an Order of Support

in the amount of $315.90 per month based upon his receipt of

unemployment benefits. On August 5, 2010, Support Magistrate

Fasone declined to sign the Order to Show. Cause and dismissed

Supplemental C" on the grounds that the issuance of a temporary

restraining order was beyond the scope of his authority.

The case continued with multiple appearance dates on Augusta

12, -2010, November 18, 2010, March 16, 2011, April 13, 2011,'. June

1, 20113 and ultimately concluded on July 6, 2011. On July 6>

2011, the Support Magistrate dismissed Supplemental "A,"

Respondent's downward modification petition, because the

Respondent "made it impossible to conduct any meaningful inquiry

into the totality of his financial circumstances" and entered a

money judgment on supplemental nB," Petitioner's violation

petition, in the amount of $21,916.34.

On July 5, 2011, one day prior to the last hearing date,

Respondent filed an "Objection, Notice of Motion to Dismiss and

3 The Order of Support remained in effect throughout the pendency of theproceeding with the exception of the modification entered June l, 2011 onSupplemental "A" to $298.00 monthly.

for Summary Judgment" on Supplementals UA" and "B." No

answering papers were ever filed. The papers were recorded as an

Objection and sent to the undersigned for review. The "Objection,

Notice of Motion to Dismiss and for Summary Judgment" essentially

argued the following:(1) The Final Order of Support entered on

February 25, 2010 is void and the subsequent decision on the

Objection of the undersigned entered on June 2, 2010 is void;(2)

Supplemental "B" should be dismissed;(3) Respondent seeks an

award of costs, disbursements and reasonable attorney's fees;(4)

Respondent seeks leave to renew and reargue his recusal motion to

disqualify the Support Magistrate from his case?-(5) Respondent

asserts he is entitled, to Summary Judgment on Supplemental ,"B"

because no questions of law or'fact exist;(6) Respondent seeks to•t

be relieved from the underlying order of support pursuant to

Civil Practice Law and Rules 5015(a) because-of lack of

jurisdiction.

The Respondent's motion was mistitled as an Objection4

although it was an omnibus motion and should have been heard by

Support Magistrate Fasone during the pendency of the hearing

instead of being referred to the undersigned. The undersigned

entertained the first item in the Respondent's motion in the

interest of judicial economy, which was denied on October 18,

2011, and referred all other matters in this omnibus motion-" to

4 On August 18, 2011, the Respondent filed an actual ^Objection" toSupport Magistrate Fasone's final order entered on July 6, 2011, which wasdenied on procedural grounds as it was late.

Support Magistrate Fasone for decision. To enable the Support

Magistrate to decide the omnibus motion in an orderly way, the

Court issued written decision dated October 18, 2011 directing

the Support Magistrate to clean up the record by setting aside

decisions on Supplemental "A" and "B" until the motion filed on

July 5, 2011 was heard, issue written decisions with findings of

facts on all motions on the appropriate dockets, and directed

that Supplemental *C" be re-filed as a motion under Supplemental

"A."

Further, the undersigned directed that oral argument on the

motion be heard before Support Magistrate Fasone on December 12,

2011. Each party was to be given fifteen minutes to present their

oral argument. Petitioner and Respondent were directed to submiti

1 any documents for -consideration to the Support Magistrate ten

days in advance of the hearing date. No adjournments of the

December 12, 2011 date should be granted except for extraordinary

circumstances. After determination on the motion, the Support

Magistrate could then issue final orders on Supplemental ttA" and'

"B. *

On December 12, 2011, both parties appeared. The Respondent»

would not state his name for the record and would not address the

Court claiming he is never heard. He moved to the back of the

courtroom to sit in the observer's row claiming that the Support

Magistrate had no jurisdiction over him. Ultimately, he left the

courtroom. The Support Magistrate denied the Respondent's motion

finding that the Respondent had declined to participate in the

hearing and dismissed Supplementals '"A" and nB" on the grounds

that the "respondent-father's consistent refusal to coherently

participate in any of the subsequent hearings on his petition

makes it impossible for the undersigned to determine whether

modification is appropriate given petitioner-mother's repeated

protestations that he owns/possesses other income producing

.assets." The Support Magistrate determined that the Respondent

non-willfully failed to obey the court's order by refusing to

make all payments resulting in arrears.

Family Court Act [hereinafter cited as "FCA"] §439(a)

empowers Support Magistrates "to hear, determine and grant any

relief within the powers of the court" in proceedings,properly

before them. FCA § 439(e) provides that the Support Magistrate's

determination "shall include findings of fact and a final order."'

The parties are permitted by the statute to submit "specific

written objections" to the order for "review" by a Family-Court

judge within the time frames set forth in the statute. Pursuant

to FCA §439(e), "Specific objections to such order may be filed

by either party with the court within thirty days after receipt

of the order in court or by personal service, or, if the

objecting party or parties did not receive the order in court or

by personal service, thirty-five days after mailing of the order

to such party or parties." The-Respondent's Objections, dated

January 20, 2012, were received and filed by the Court on January

23, 2012.5 By statute/ the Petitioner had thirteen days to file a

written Rebuttal; no written Rebuttal was filed with the Court.

In Respondent's Objection, he argued that all of Support

Magistrate Fasone's orders should be void based upon nbias,

prejudice, and corruption"6 and that the Support Magistrate did

not follow the undersigned's directives. Respondent states that

he did not get the decisions from Support Magistrate Fasone and

therefore, did not know what to argue on December 12, 2011 and

was "not ready for argument."7

Upon full review of the record provided to the Court, the

Findings of Fact and Order issued by the Support Magistrate, and

the Objection filed by the Respondent, this Court hereby denies

the Respondent's Objection on procedural grounds.

The Orders on Supplementals "A" and "B" were mailed on

December 15, 2011. Since the objection was filed on January 23,

2012,8 more than thirty five days from the date of mailing, the

Objection i-s deemed untimely (Family Court Act § 439 (e) / Russell

5 Attached to the Respondent's Objections is an affidavit of serviceindicating that on January 20,2012, Nelli Frid, a person over the age ofeighteen and not a party to the action, personally served a copy of theObjections to the Petitioner. The affidavit was*notarized on January 23, 20i2.

s Michael Krichevsky, Affidavit in Support, January 20, 2012 ^ is.

7 Michael Krichevsky, Affidavit in Support, January 20 , 2012 U 16,

8 The date stamp on the objection states "2011 Jan 18 AM 9 :00" and iscrossed out. Underneath the date stamp, it states "Jan. 23 PM 4:34 PTP." PTPare the initials of the Assistant Deputy Chief Clerk of the Support Division.It is clear that the date stamp was an error as it states "2011" instead of2012 and January 18 predates the Respondent's completion of his'Objection(dated January 20, 2012), his affidavit in support (dated January 20, 2012)and his affidavit of service (notarized on January 23, 2012) .

v Gittens, 81 AD3d 652 [2d Dept 2011]; Sanatoria v Medina, 69 AD3d

947 [2d Dept 2010]; Hodges v Hodges, 40 AD3d 639 [2d Dept 2007];

Mazzilli- v Mazzilli, 17 AD3d 680 [2d Dept 2005] ; Pedone v Corpas,

24 AD3d 559 [2d Dept 2005] / Herman v Herman, 11 AD3d 536 [2d Dept

2004]; Chambers v Chambers, 305 AD2d 672, 673 [2d Dept 2003];

Mayeri v Mayerif 279 AD2d 473 [2d Dept 2001] ; Werner v Werner,

130 AD2d 754 [2d Dept 1987]) . Therefore, the Objection to the

Court's orders of December 13, 2012 are denied on procedural

grounds.'

The Court is to notify the Petitioner/ Respondent, SCU and

Support Magistrate Fasone of its decision.'

N\\ N\ E R : \A J. HEPNER, - A'.J.S. C.

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