UNITED STATES BANKRUPTCY COURT RETURN DATE August 1 2013EASTERN DISTRICT OF NEW YORK---------------------------------------------------------xIN THE MATTER OFELENA SVENSON CASE NO 1-12-43050-ess

Debtor CHAPTER 7--------------------------------------------------------x MICHAEL KRICHEVSKY

PlaintiffCreditorvELENA SVENSON Adversary Proceeding No 12-01229-ess

DefendantdebtorBOARD OF MANAGERS OF OCEANA CONDOMINIUM NO TWO INTERNAL REVENUE SERVICE INC

DefendantsCreditorsVICTORIA EDELSTEIN DDS BORIS KOTLYAR COOPER SQUARE REALTY INC LANA KAPLUN personally FARID BADALOV personally BORIS MEYDID personally JOHN DOE and JANE JOHNS personally (fictitious names to be discovered)

Defendants---------------------------------------------------------------x VICTORIA EDELSTEIN DDS and BORIS KOTLYAR

Cross-ClaimantsvMICHAEL KRICHEVSKY

Cross-Defendant-----------------------------------------------------------------x

OBJECTION REPLY TO DEFENDANTrsquoS SVENSON MOTION TO DISSMIS

MICHAEL KRICHEVSKY Pro Se under penalty of perjury deposes and says

1 I am the plaintiff in the within action

2 I make this objection and affidavit in opposition to the motion to dismiss SECOND

AMENDED COMPLAINT (SAC)

ASSERTION OF CONSTITUTIONAL RIGHTS AND MEMORANDUM OF LAW

3 United States Constitution and Constitution of the State of New York protect individual

constitutional rights to form a contract and conduct commerce Therefore ldquoAll laws which

are repugnant to the Constitution are null and void Marbury v Madison 5 US137

174176 A law that impinges upon a fundamental right explicitly or implicitly secured by

the Constitution is presumptively unconstitutional Mobile v Bolden 446 US 55 76 Harris

v McRae 448 US 297312

4 A law that improperly infringes on Constitutional Rights is void from its inception and no

person can be obligated to obey such a law 16A Am Jur2d Constitutional Law Section

2035

5 Where rights secured by the Constitution are involved there can be no rule-making or

legislation which would abrogate them Miranda v Arizona 384 US 436

6 The Supreme Court has forcefully established that court proceedings must be within

Constitutional provisions Smith v US 360 US 1 Muskrat v United States 219 US 346

7 But whenever the judicial power is called into play it is responsible directly to the

fundamental law and no other authority can intervene to force or authorize the judicial body

to disregard it Yakus v US 321 US 414 pg 468

Violation of Constitutional Rights voids in personam jurisdiction

8 A judgment rendered in violation of due process is void World Wide Volkswagen v

Woodsen 444 US 286 291 National Bank v Wiley 195 US 257 Pennoyer v Neff 95 US

714

9 If the Bill of Rights is not complied with the court no longer has jurisdiction to proceed

The judgment pronounced by a court without jurisdiction is void Johnson v Zerbst

304 US 458468

10 the requirements of due process must be met before the court can properly assert in

personam jurisdiction Wells Fargo v Wells Fargo 556 F2d 406 416

11 It is beyond question of course that a conviction based on a record lacking any relevant

evidence as to a crucial element of the offense charged violates due process Vachon v New

Hampshire 414 US 478

Assertion Of Constitutional Right To Petition Government For Redress Of

Grievances

12 Plaintiff Pro Se for the 2nd time requests the court and its officers to be mindful of his Pro Se

status In cases and precedents that mostly reported there is a presumption that party

represented by trained and licensed attorneys KRICHEVSKY however is none of them

Below are the cases that apply directly to Plaintiffrsquos status

Wright v SZCZUR Dist Court WD New York (2012) ldquoAlthough pled

inartfully and in a rather conclusory fashion considering the Wrights pro

se status such allegations state a valid claim under the Fourteenth

Amendments Due Process Clause See Platsky v CIA 953 F2d 26 28

(2d Cir1991) ([T]he Supreme Court has instructed the district courts to

construe pro se complaints liberally and to apply a more flexible standard

in determining the sufficiency of a pro se complaint than they would in

reviewing a pleading submitted by counsel) See also ldquoThe Erie County

Defendants argue that they are entitled to qualified immunity which

protects officials from sect 1983 liability if their actions (1) did not violate

clearly established law or (2) were objectively reasonable See Warren

v Keane 196 F3d 330 332 (2d Cir 1999) However if the Wrights

3 United States Constitution and Constitution of the State of New York protect individual

constitutional rights to form a contract and conduct commerce Therefore ldquoAll laws which

are repugnant to the Constitution are null and void Marbury v Madison 5 US137

174176 A law that impinges upon a fundamental right explicitly or implicitly secured by

the Constitution is presumptively unconstitutional Mobile v Bolden 446 US 55 76 Harris

v McRae 448 US 297312

4 A law that improperly infringes on Constitutional Rights is void from its inception and no

person can be obligated to obey such a law 16A Am Jur2d Constitutional Law Section

2035

5 Where rights secured by the Constitution are involved there can be no rule-making or

legislation which would abrogate them Miranda v Arizona 384 US 436

6 The Supreme Court has forcefully established that court proceedings must be within

Constitutional provisions Smith v US 360 US 1 Muskrat v United States 219 US 346

7 But whenever the judicial power is called into play it is responsible directly to the

fundamental law and no other authority can intervene to force or authorize the judicial body

to disregard it Yakus v US 321 US 414 pg 468

Violation of Constitutional Rights voids in personam jurisdiction

8 A judgment rendered in violation of due process is void World Wide Volkswagen v

Woodsen 444 US 286 291 National Bank v Wiley 195 US 257 Pennoyer v Neff 95 US

714

9 If the Bill of Rights is not complied with the court no longer has jurisdiction to proceed

The judgment pronounced by a court without jurisdiction is void Johnson v Zerbst

304 US 458468

10 the requirements of due process must be met before the court can properly assert in

personam jurisdiction Wells Fargo v Wells Fargo 556 F2d 406 416

11 It is beyond question of course that a conviction based on a record lacking any relevant

evidence as to a crucial element of the offense charged violates due process Vachon v New

Hampshire 414 US 478

Assertion Of Constitutional Right To Petition Government For Redress Of

Grievances

12 Plaintiff Pro Se for the 2nd time requests the court and its officers to be mindful of his Pro Se

status In cases and precedents that mostly reported there is a presumption that party

represented by trained and licensed attorneys KRICHEVSKY however is none of them

Below are the cases that apply directly to Plaintiffrsquos status

Wright v SZCZUR Dist Court WD New York (2012) ldquoAlthough pled

inartfully and in a rather conclusory fashion considering the Wrights pro

se status such allegations state a valid claim under the Fourteenth

Amendments Due Process Clause See Platsky v CIA 953 F2d 26 28

(2d Cir1991) ([T]he Supreme Court has instructed the district courts to

construe pro se complaints liberally and to apply a more flexible standard

in determining the sufficiency of a pro se complaint than they would in

reviewing a pleading submitted by counsel) See also ldquoThe Erie County

Defendants argue that they are entitled to qualified immunity which

protects officials from sect 1983 liability if their actions (1) did not violate

clearly established law or (2) were objectively reasonable See Warren

v Keane 196 F3d 330 332 (2d Cir 1999) However if the Wrights

10 the requirements of due process must be met before the court can properly assert in

personam jurisdiction Wells Fargo v Wells Fargo 556 F2d 406 416

11 It is beyond question of course that a conviction based on a record lacking any relevant

evidence as to a crucial element of the offense charged violates due process Vachon v New

Hampshire 414 US 478

Assertion Of Constitutional Right To Petition Government For Redress Of

Grievances

12 Plaintiff Pro Se for the 2nd time requests the court and its officers to be mindful of his Pro Se

status In cases and precedents that mostly reported there is a presumption that party

represented by trained and licensed attorneys KRICHEVSKY however is none of them

Below are the cases that apply directly to Plaintiffrsquos status

Wright v SZCZUR Dist Court WD New York (2012) ldquoAlthough pled

inartfully and in a rather conclusory fashion considering the Wrights pro

se status such allegations state a valid claim under the Fourteenth

Amendments Due Process Clause See Platsky v CIA 953 F2d 26 28

(2d Cir1991) ([T]he Supreme Court has instructed the district courts to

construe pro se complaints liberally and to apply a more flexible standard

in determining the sufficiency of a pro se complaint than they would in

reviewing a pleading submitted by counsel) See also ldquoThe Erie County

Defendants argue that they are entitled to qualified immunity which

protects officials from sect 1983 liability if their actions (1) did not violate

clearly established law or (2) were objectively reasonable See Warren

v Keane 196 F3d 330 332 (2d Cir 1999) However if the Wrights

establish that these Defendants violated their constitutional right to care

for their children they are not entitled to this immunity for two reasons

First this law is clearly established See eg Santosky v Kramer 455

US 745 753 102 S Ct 1388 71 L Ed 2d 599 (1982) (noting Supreme

Courts historical recognition that freedom of personal choice in matters

of family life is a fundamental liberty interest protected by the Fourteenth

Amendment) Second without more facts this Court cannot conclude

that it was objectively reasonable for these Defendants to believe that their

conduct did not violate the Wrights rights It is alleged that they

misrepresented and forged documents and testimony Such acts are

not objectively reasonable Defendants are therefore not entitled to

the protections of qualified immunity at this time

13 In Harnett v Barr 538 F Supp 2d 511 (2008) the court stated

Motion to Dismiss

A court may not dismiss an action pursuant to Rule 12(b)(6) unless it

appears beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief Cohen v Koenig 25 F3d

1168 1172 (2d Cir1994) (citing inter alia Conley v Gibson 355 US 41

45-46 78 SCt 99 2 LEd2d 80 (1957)) The court must accept the

material facts alleged in the complaint as true Id (citing Cooper v Pate

378 US 546 84 SCt 1733 12 LEd2d 1030 (1964) (per curiam)) In

determining whether a complaint states a cause of action great

liberality is afforded to pro se litigants Platsky v Central Intelligence

Agency 953 F2d 26 28 (2d Cir1991) (citation omitted)

B Motion to Amend the Complaint

In using its discretion in determining whether to allow a party leave to

amend the court must follow FedRCivP 15(a) which provides that

leave to amend will be granted freely when justice so requires

FedRCivP 15(a)(2) See Foman v Davis 371 US 178 182 83 SCt

227 9 LEd2d 222 (1962) The court may also on just terms grant a

party leave to supplement setting forth transactions occurrences or

events that happened after the date of the pleading to be supplemented

FedRCivP 15(d) A court may allow supplementation even if the

original pleading is defective in stating a claim or defense Id The

standards for a motion to amend and a motion to supplement are the same

See Smith v Goord 04-CV-6432 2006 WL 2850597 1 2006 US Dist

LEXIS 74015 3-4 (WDNY Sept 22 2006 (emphasis added)

14 In Kemer v Johnson 900 F Supp 677 (1995) the court stated

In order to justify the dismissal of a pro se complaint it must be `beyond

doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief Platsky 953 F2d at 28 (quoting

Haines v Kerner 404 US at 521 92 SCt at 595)

15 In Philippeaux v North Central Bronx Hosp 871 F Supp 640 (1994) the court stated

ldquoSummary judgment may not be granted unless the submissions of the

parties taken together show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a

matter of law Rule 56(c) FedRCivP In making this judgment the

burden is on the moving party and all facts must be viewed in the light

most favorable to the non-moving party Anderson v Liberty Lobby

Inc 477 US 242 247 106 SCt 2505 2509-10 91 LEd2d 202

(1986) Celotex Corp v Catrett 477 US 317 323 106 SCt 2548

2552-53 91 LEd2d 265 (1986) In addition when determining

whether to grant summary judgment in discrimination cases in which

intent is an issue the court must exercise extra caution Gallo v

Prudential Residential Services LP 22 F3d 1219 1224 (2d

Cir1994) This extra caution is further warranted in cases such as this

one in which there has been only limited document discovery Finally

this Court must construe a pro se complaint more liberally and apply a

more flexible standard in determining whether the plaintiff has stated a

cause of action See Platsky v CIA 953 F2d 26 28 (2d Cir1991)

Thus in determining whether to grant summary judgment this Court

must (i) determine whether a factual dispute exists and (ii) determine

based on the substantive law at issue whether the fact in dispute is

materialrdquo

16 Haines v Kerner 404 US 519-421(1995) In re Haines ldquopro se litigants are held to less

stringent pleading standards than admitted or licensed bar attorneysrdquo ldquoRegardless of the

deficiencies in their pleadings pro se litigants are entitled to the opportunity to submit

evidence in support of their claimsrdquo

17 Anastasoff v United States 223 F3d 898 (8th Cir 2000) In re Anastasoff litigants

constitutional (guaranteed) rights are violated when courts depart from precedent where

parties are similarly situated The court statedldquoInherent in every judicial decision is a

declaration and interpretation of a general principle or rule of law Marbury v Madison 5

US 137 1 Cranch 137 177-78 900900 2 LEd 60 (1803) This declaration of law is

authoritative to the extent necessary for the decision and must be applied in subsequent cases

to similarly situated parties James B Beam Distilling Co v Georgia 501 US 529 544 111

SCt 2439 115 LEd2d 481 (1991) Cohens v Virginia 6 Wheat 264 399 5 LEd 257

(1821) These principles which form the doctrine of precedent were well established and

well regarded at the time this nation was foundedrdquo See also ldquoIt is often said among judges

that the volume of appeals is so high We do not have time to do a decent enough jobthe

remedy instead is to create enough judgeships to handle the volume or if that is not

practical for each judge to take enough time to do a competent job with each caserdquo

18 In instant case every party except KRICHEVSKY represented by licensed attorneys

19 If this Honorable court finds any problem with KRICHEVSKYrsquos SAC he moves this

Honorable court to give him instructions on how to repair it

20 KRICHEVSKY particularly objects to defendantrsquos attorney ldquoBACKGROUNDrdquo in instant

motion as fraudulent and misleading the court

21 KRICHEVSKY objects to unsworn testimony of Ms LaMotte This motion is futilely

defective It does not have an affidavit attached or court record of testimony attached that

Ms LaMotte can quote from In the absence of these she is merely testifying without

firsthand knowledge which is hearsay If she insists that she is a witness then she cannot

represent Defendant and KRICHEVSKY has a right to examine her

22 Notwithstanding the above KRICHEVSKY avers that Ms LaMotte intentionally misleading

the court Particularly in para5 of her motion to dismiss she states

ldquoAfter the expiration of the initial term dispute resulted from the subsequent occupancy of the apartment the term of the lease and became an additional front upon which plaintiff and Svenson did battlerdquo

23 She is completely ignoring averments of KRICHEVSKYrsquos AMENDED COMPLAINT

and SAC and misquoting them Briefly after the 1st year expiration of lease with

EDELSTEIN she decided not to renew it for an additional 3 years There was no

disagreement and there was no battle EDELSTEIN offered SVENSON and

KRICHEVSKY month-to-month lease and they agreed This month-to-month lease

begun in December of 2006 and lawful occupation continued until 2008 At that time

EDELSTEIN and SVENSON conspired behind KRICHEVSKY back and created

fraudulent backdated lease signed by SVENSON without KRICHEVSKYrsquos knowledge

and consent It was done with the goal to hinder and delay the sale of the UNIT It

was done to extort money and force KRICHEVSKY to short sell the UNIT to

EDELSTEIN and KOTLYAR This in turn gave rise to KRICHEVSKYrsquos claim for

fraudulent conveyance and other torts This is why KRICHEVSKY brought in this court

EDELSTEIN and KOTLYAR as aiders and abettors conspirators and tortfeasors

SVENSONrsquos torts and theirs committed against KRICHEVSKY made them jointly

liable Claims for fraudulent conveyance and conversion is what this bankruptcy court

is dealing on the regular basis

24 This motion is frivolous because Ms LaMotte ignores KRICHEVSKYrsquos PRO SE status and

applies plausibility standard to his pleadings even though she was notified by him and is

aware of it In this motion she acknowledges his PRO SE status crosses out the controlling

law prescribing liberal attitude toward PRO SE pleadings and goes on to argue that his

pleadings does not conform to heightened plausibility standard This standard presumes that

the pleading is done by experienced and licensed attorney The case law in this area is

controversial now and even licensed and experienced attorneys very often make mistakes

requiring amendment of the pleadings Her argument goes against controlling case Foman v

Davis 371 US 178 - Supreme Court 1962 where the court eloquently stated

It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits Conley v Gibson 355 U S 41 48 The Rules themselves provide that they are to be construed to secure the just speedy and inexpensive determination of every action Rule 1

25 In reply to the argument that SAC is not compliant with Federal rule of Civil Procedure 9(b)

KRICHEVSKY states that this argument is frivolous and meritless SAC has 192 paragraphs

particularly stating the dates times places and statements of what was said and done to give

SVENSON notice of transactions KRICHEVSKY demands that SVENSON points out the

number of paragraph or quote a statement which is not sufficiently particular And for that a

motion for more definite statement is appropriate

26 In para 20 Ms LaMotte shamelessly lying and misleading the court by stating

ldquoPlaintiffrsquos entire complaint is framed on broad terms he attributes several broad

statements to Svenson but never specifies the statement that he ldquojustifiablyrdquo

relied upon in order to allege fraudrdquo

27 In fact KRICHEVSKY avers in para 115 of his SAC

ldquoSVENSON knew that she was not divorced because she was married from 1988 until 1994 to SAM Accordingly it was misrepresentation of material fact known to be false when made to induce KRICHEVSKY to rely on misrepresented fact KRICHEVSKY justifiably relied on misrepresentation that she is divorced and

pleadings does not conform to heightened plausibility standard This standard presumes that

the pleading is done by experienced and licensed attorney The case law in this area is

controversial now and even licensed and experienced attorneys very often make mistakes

requiring amendment of the pleadings Her argument goes against controlling case Foman v

Davis 371 US 178 - Supreme Court 1962 where the court eloquently stated

It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits Conley v Gibson 355 U S 41 48 The Rules themselves provide that they are to be construed to secure the just speedy and inexpensive determination of every action Rule 1

25 In reply to the argument that SAC is not compliant with Federal rule of Civil Procedure 9(b)

KRICHEVSKY states that this argument is frivolous and meritless SAC has 192 paragraphs

particularly stating the dates times places and statements of what was said and done to give

SVENSON notice of transactions KRICHEVSKY demands that SVENSON points out the

number of paragraph or quote a statement which is not sufficiently particular And for that a

motion for more definite statement is appropriate

26 In para 20 Ms LaMotte shamelessly lying and misleading the court by stating

ldquoPlaintiffrsquos entire complaint is framed on broad terms he attributes several broad

statements to Svenson but never specifies the statement that he ldquojustifiablyrdquo

relied upon in order to allege fraudrdquo

27 In fact KRICHEVSKY avers in para 115 of his SAC

ldquoSVENSON knew that she was not divorced because she was married from 1988 until 1994 to SAM Accordingly it was misrepresentation of material fact known to be false when made to induce KRICHEVSKY to rely on misrepresented fact KRICHEVSKY justifiably relied on misrepresentation that she is divorced and

honest with him This fraudulent concealment and misrepresentation later on detrimentally resulted in damagesrdquo

28 In para para 135 ndash 136 of SAC KRICHEVSKY avers

ldquoKRICHEVSKY trusted SVENSON and justifiably relied on her misrepresentations and fraudulent concealment to his detriment and lossHer misrepresentations fraudulent concealment of truth and deceit continued from 1991 until present and KRICHEVSKY invokes doctrines of continuous violation and equitable tolling to deny SVENSONrsquos affirmative defense of statute of limitation

29 Ms LaMotte admits to truth of KRICHEVSKYrsquos averments regarding fraud and that

SVENSON did not attend medical school but then she is misleadingly implying that

KRICHEVSKY knew or should have known that SVENSON is not attending medical

school She goes on to say that KRICHEVSKY failed to exercise ordinary intelligence and

should have figured out that SVENSON is a gold digger and the scam artist Unfortunately

KRICHEVSKY was not intelligence officer and did not have means to do surveillance as he

was working 60 to 80 hours per week To add more insult to the injury Ms LaMotte is

quoting Kurtz v Foy 65 AD3d 741 743 (2009) This case starts with

ldquoIn November 2004 plaintiffs purchased from defendants a 328-acre parcel of lakefront property in the Town of Greenfield Saratoga County A dirt-and-gravel roadway known as Braden Road runs across the property roughly parallel to the shoreline Plaintiffs claim that prior to their purchase and in response to their inquiries defendants repeatedly assured them that the roadway was privaterdquo

30 The case continue on to say that defendants who turn out to be a con artists were able to fool

and cheat New York State licensed real estate attorney and the real estate agent by selling

them public land It is almost like selling Brooklyn Bridge to private parties which

represented by an attorney Aside the legal malpractice committed by this attorney who

failed to check public records defendants admitted to fraud but argued that he failed to

exercise ordinary intelligence by not checking public records and filed motion to dismiss for

failure to state a claim The court stated

ldquoHowever a purchasers failure to determine a transactions true nature by inspecting public records is not fatal when the facts were peculiarly within the knowledge of the defendant[] and were willfully misrepresented

31 Ms LaMotte shamelessly implying that KRICHEVSKY should have hired New York State

licensed divorce attorney who should have checked public records database of ldquocon artists

and gold diggersrdquo before going in bed with SVENSON Too bad that KRICHEVSKY did not

know Ms LaMotte at that time and did not hire her However doing ordinary intelligence

(per legal advice of Ms LaMotte) and looking for ldquocon artists and gold diggersrdquo public

records database to see if SVENSON registered there KRICHEVSKY came to conclusion

that such a database does not exist and never existed What ordinary intelligence did

KRICHEVSKY failed to do in order to discover ldquowerewolfrdquo

32 The court continued in that case

ldquoplaintiffs allege that the failure to disclose this information in response to their inquiries constituted willful misrepresentation We agree that viewed in the light most favorable to plaintiffs the pleadings sufficiently state causes of action in fraud and negligent misrepresentation

Ordered that the order is affirmed with costsrdquo

33 Shame on you Ms LaMotte This case actually supports KRICHEVSKYrsquos plausible

claims for fraud in New York and you just attempted to mislead the court and have his

complaint fraudulently dismissed in violation of Federal Rules of Civil Procedure 11

34 In reply to argument that certain causes of action for fraud and breach of contract time-

barred Krichevsky avers that it is similarly misleading New York State has exception to 6

years fraud statute of limitation rule New York law provides that after discovery of fraud

Plaintiff has 2 years to start litigation KRICHEVSKY contrary to Ms LaMottersquos misleading

allegations timely asked the court to add claims for fraud based on newly discovered

evidence See Kaufman v Cohen 307 AD 2d 113 - NY Appellate Div 1st Dept (2003)

ldquoNevertheless plaintiffs argument for application of the fraud discovery accrual rule to their

claims is persuasive A cause of action sounding in fraud must be commenced within 6

years from the date of the fraudulent act or 2 years from the date the party discovered the

fraud or could with due diligence have discovered it (Ghandour v Shearson Lehman Bros

213 AD2d 304 305 [1995] lv denied 86 NY2d 710 [1995] CPLR 213 [8] 203 [g])[4] The

discovery accrual rule also applies to fraud-based breach of fiduciary duty claims (see Yatter

v William Morris Agency 268 AD2d 335 336 [2000] Whitney Holdings Ltd v 123123

Givotovsky 988 F Supp at 744)rdquo This case shows that trial court erred in denying plaintiff

leave to amend when KRICHEVSKY submitted witness affidavit showing the date time and

place of discovery of fraud exhibit A

35 if SVENSON wants to argue that point KRICHEVSKY moves this Honorable court to order

evidentiary hearing to determine finality of Honorable Bert Bunyan order

36 If not for SVENSONrsquos bankruptcy filings that stayed Supreme Courtrsquos proceedings

KRICHEVSKY was preparing a notice of appeal which he would have filed on time

Additionally the court in above mentioned case stated

[A] defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud misrepresentations or deception to refrain from filing a timely action (Simcuski v Saeli 44 NY2d 442 448-449 [1978]) The doctrine requires proof that the defendant made an actual misrepresentation or if a fiduciary concealed facts which he was required to disclose that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action (Powers Mercantile Corp v Feinberg 109 AD2d 117 122 [1985] affd 67 NY2d 981 [1986] Jordan v Ford Motor Co 73 AD2d 422 424 [1980])

exercise ordinary intelligence by not checking public records and filed motion to dismiss for

failure to state a claim The court stated

ldquoHowever a purchasers failure to determine a transactions true nature by inspecting public records is not fatal when the facts were peculiarly within the knowledge of the defendant[] and were willfully misrepresented

31 Ms LaMotte shamelessly implying that KRICHEVSKY should have hired New York State

licensed divorce attorney who should have checked public records database of ldquocon artists

and gold diggersrdquo before going in bed with SVENSON Too bad that KRICHEVSKY did not

know Ms LaMotte at that time and did not hire her However doing ordinary intelligence

(per legal advice of Ms LaMotte) and looking for ldquocon artists and gold diggersrdquo public

records database to see if SVENSON registered there KRICHEVSKY came to conclusion

that such a database does not exist and never existed What ordinary intelligence did

KRICHEVSKY failed to do in order to discover ldquowerewolfrdquo

32 The court continued in that case

ldquoplaintiffs allege that the failure to disclose this information in response to their inquiries constituted willful misrepresentation We agree that viewed in the light most favorable to plaintiffs the pleadings sufficiently state causes of action in fraud and negligent misrepresentation

Ordered that the order is affirmed with costsrdquo

33 Shame on you Ms LaMotte This case actually supports KRICHEVSKYrsquos plausible

claims for fraud in New York and you just attempted to mislead the court and have his

complaint fraudulently dismissed in violation of Federal Rules of Civil Procedure 11

34 In reply to argument that certain causes of action for fraud and breach of contract time-

barred Krichevsky avers that it is similarly misleading New York State has exception to 6

years fraud statute of limitation rule New York law provides that after discovery of fraud

Plaintiff has 2 years to start litigation KRICHEVSKY contrary to Ms LaMottersquos misleading

allegations timely asked the court to add claims for fraud based on newly discovered

evidence See Kaufman v Cohen 307 AD 2d 113 - NY Appellate Div 1st Dept (2003)

ldquoNevertheless plaintiffs argument for application of the fraud discovery accrual rule to their

claims is persuasive A cause of action sounding in fraud must be commenced within 6

years from the date of the fraudulent act or 2 years from the date the party discovered the

fraud or could with due diligence have discovered it (Ghandour v Shearson Lehman Bros

213 AD2d 304 305 [1995] lv denied 86 NY2d 710 [1995] CPLR 213 [8] 203 [g])[4] The

discovery accrual rule also applies to fraud-based breach of fiduciary duty claims (see Yatter

v William Morris Agency 268 AD2d 335 336 [2000] Whitney Holdings Ltd v 123123

Givotovsky 988 F Supp at 744)rdquo This case shows that trial court erred in denying plaintiff

leave to amend when KRICHEVSKY submitted witness affidavit showing the date time and

place of discovery of fraud exhibit A

35 if SVENSON wants to argue that point KRICHEVSKY moves this Honorable court to order

evidentiary hearing to determine finality of Honorable Bert Bunyan order

36 If not for SVENSONrsquos bankruptcy filings that stayed Supreme Courtrsquos proceedings

KRICHEVSKY was preparing a notice of appeal which he would have filed on time

Additionally the court in above mentioned case stated

[A] defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud misrepresentations or deception to refrain from filing a timely action (Simcuski v Saeli 44 NY2d 442 448-449 [1978]) The doctrine requires proof that the defendant made an actual misrepresentation or if a fiduciary concealed facts which he was required to disclose that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action (Powers Mercantile Corp v Feinberg 109 AD2d 117 122 [1985] affd 67 NY2d 981 [1986] Jordan v Ford Motor Co 73 AD2d 422 424 [1980])

Plaintiff has 2 years to start litigation KRICHEVSKY contrary to Ms LaMottersquos misleading

allegations timely asked the court to add claims for fraud based on newly discovered

evidence See Kaufman v Cohen 307 AD 2d 113 - NY Appellate Div 1st Dept (2003)

ldquoNevertheless plaintiffs argument for application of the fraud discovery accrual rule to their

claims is persuasive A cause of action sounding in fraud must be commenced within 6

years from the date of the fraudulent act or 2 years from the date the party discovered the

fraud or could with due diligence have discovered it (Ghandour v Shearson Lehman Bros

213 AD2d 304 305 [1995] lv denied 86 NY2d 710 [1995] CPLR 213 [8] 203 [g])[4] The

discovery accrual rule also applies to fraud-based breach of fiduciary duty claims (see Yatter

v William Morris Agency 268 AD2d 335 336 [2000] Whitney Holdings Ltd v 123123

Givotovsky 988 F Supp at 744)rdquo This case shows that trial court erred in denying plaintiff

leave to amend when KRICHEVSKY submitted witness affidavit showing the date time and

place of discovery of fraud exhibit A

35 if SVENSON wants to argue that point KRICHEVSKY moves this Honorable court to order

evidentiary hearing to determine finality of Honorable Bert Bunyan order

36 If not for SVENSONrsquos bankruptcy filings that stayed Supreme Courtrsquos proceedings

KRICHEVSKY was preparing a notice of appeal which he would have filed on time

Additionally the court in above mentioned case stated

[A] defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud misrepresentations or deception to refrain from filing a timely action (Simcuski v Saeli 44 NY2d 442 448-449 [1978]) The doctrine requires proof that the defendant made an actual misrepresentation or if a fiduciary concealed facts which he was required to disclose that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action (Powers Mercantile Corp v Feinberg 109 AD2d 117 122 [1985] affd 67 NY2d 981 [1986] Jordan v Ford Motor Co 73 AD2d 422 424 [1980])

37 As KRICHEVSKY stated before in his complaints and is stating now which averments the

court may use to supplement SAC SVENSON and KRICHEVSKY were in confidential and

partnership relations with each other As such SVENSON owed a fiduciary duty of

disclosure and utmost honesty to KRICHEVSKY Her fraudulent concealment of the truth

and constant promises of bright future after graduation from medical school kept

KRICHEVSKY in the dark He paid for babysitter private schools for the child so that

SVENSON could pick up the child at 6 pm after her medical school He believed her that she

is attending her school and justifiably relied on her promises of graduation from medical

school getting a job or starting a business and finally becoming productive member of the

family and society It was not until SVENSON started rejections of the jobs that

KRICHEVSKY was coming across due to his ties in the community Below stated incident

was a ldquonail in the coffin of partiesrsquo relationshiprdquo when KRICHEVSKY realized that

SVENSON never intended to work and her charade of medical school was a scam to cover

up her gold diggerrsquos character At or about 2006 KRICHEVSKY found a job for SVENSON

with doctor neuropsychologist SVENSON went on interview and sabotaged it so that she

would not be hired Before that she told KRICHEVSKY that she needs some experience as

psychologist in her resume and will go to volunteer in Mount Sinai Hospital in Manhattan as

social worker for one year Only God knows whether she did volunteer in this hospital

38 KRICHEVSKY noticed that exhibit C in instant motion is not complete and presumes that

something in this order is intentionally omitted This exhibit is judgersquos order and this order

stops on page 15 Therefore KRICHEVSKY stops and rests on his affidavit at this point He

will travel to the New York State Supreme Court in order to obtain complete copy and will

continue his opposition afterwards

39 KRICHEVSKY notifies defendant SVENSON that he would supplement his affidavit in

opposition to motion to dismiss after he obtains all necessary exhibits from the court

Dated Brooklyn New York June1 2013

______________________________ Michael Krichevsky Pro Se

• EASTERN DISTRICT OF NEW YORK
• BOARD OF MANAGERS OF OCEANA
• CONDOMINIUM NO TWO INTERNAL
• KOTLYAR
• MICHAEL KRICHEVSKY
• OBJECTION REPLY TO DEFENDANTrsquoS SVENSON MOTION TO DISSMIS
• Dated Brooklyn New York

39 KRICHEVSKY notifies defendant SVENSON that he would supplement his affidavit in

opposition to motion to dismiss after he obtains all necessary exhibits from the court

Dated Brooklyn New York June1 2013

______________________________ Michael Krichevsky Pro Se

• EASTERN DISTRICT OF NEW YORK
• BOARD OF MANAGERS OF OCEANA
• CONDOMINIUM NO TWO INTERNAL
• KOTLYAR
• MICHAEL KRICHEVSKY
• OBJECTION REPLY TO DEFENDANTrsquoS SVENSON MOTION TO DISSMIS
• Dated Brooklyn New York