CIVIL COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS: PART 11C/35C

NEW CENTURY FINANCIAL SERVICES, INC.,
Plaintiff,
-against-
MICHAEL KRICHEVSKY,
Defendant.
MICHAEL KRICHEVSKY,
-X
Third Party Plaintiff,
-against-
JOHN FASONE, YONATAN LEVORITZ, VICTOR
KATKALOV, KINGS COUNTY CHILD SUPPORT
COLLECTION UNIT, ELENA SVENSON,
Defendants.
STATE OF NEW YORK)
' ' : SS.:
COUNTY OF NEW YORK)
Index No. 056717/13
-X AFFIDAVIT IN SUPPORT OF
MOTION TO DISMISS THE
THIRD-PARTY COMPLAINT
(Dear, J.)
-X
CHARLES F. SANDERS, being duly sworn, deposes and says:
1.' I am an Assistant Attorney General in the Office of the Attorney General of the State
of New York, attorney for defendant John Fasone, a support magistrate of the Family Court of
the State of New York, Kings County ("Family Court")- This affidavit is submitted in support of
his motion to dismiss the complaint on the grounds that the Court does not have subject matter
jurisdiction, any judge or support magistrate of the Family Court of the State of New York,
Kings County is entitled to absolute judicial and quasi-judicial immunity, and the Third-Party
Complaint is not a proper pleading under CPLR 1007.
Prior Judicial Proceedings In Family Court, Kings County
2. On November 3, 2008, Elena Svenson filed a petition in the Family Court, Kings
County seeking financial child support from Third-Party Plaintiff Krichevsky for their child.
3. After various submissions by the respective parties indicating their respective
financial circumstances and proceedings held before Support. Magistrate Fasone, by Order of
Support and Findings of Facts, both dated February 3, 2010, the Family Court (Fasone, Support
Magistrate) determined and directed that Third-Party Plaintiff Krichevsky is to pay $2,045.00
monthly toward the support of the child at issue, and set the amount of support arrears as
$31,599.42, from the date of the filing of the support petition with the Family Court. See April 2,
2012 Family Court Decision and Order and February 3, 2010 Family Court Final Order of
Support collectively annexed hereto as Exhibit "A".
4. After the filing of various objections by Third-Party Plaintiff Krichevsky seeking a
reduction and modification of the Final Order, by Decision and Order, dated April 2, 2012, the
Family Court (Hepner, J.) denied the objections and further found that Family Court Act 439
empowers support magistrates to "hear, determine and grant any relief within the powers of of
the court, including to determine findings of fact and a final order. See Exhibit "A": April 2,
2012 Family Court Decision and Order, p. 6.
Present Action
5. By Third-Party Complaint, dated January 27, 2014, Third Party Plaintiff Michael
Krichevsky, acting pro se, brings this third-party action against the third-party defendants,
including John Fasone, a support magistrate of the Family Court of the State of New York, Kings
' County ("Family Court") claiming that the Third-Party Defendants are liable to him for the sums
due in the original debt collection action brought against him by Plaintiff New Century Financial
- 2 -
Services, Inc. for charges he incurred using a credit card. See Third-Party Complaint. The Third-
Party Complaint further states various contract and tort claims against the Third-Party
Defendants, including "tortious interference with Citibank contract (Count 1); tortious
interference with contract (Leon Constraction [sic])(Count II)"; "aid .and abet tortious
interference with contracts (Count III)"; aid and abet fiduciary duty (Count IV); and extortion,
harassment, and concerted actions (Count VI). See Third-Party Complaint, fflf 27-181'. Third-
Party Plaintiff Krichevsky seeks a monetary judgment for compensatory, punitive and treble
damages for an unspecified amount, and a declaratory judgment by the Civil Court that he was
denied his constitutional rights in custody proceedings before the Family Court. See Third-Party
Complaint, Wherefore Clause annexed hereto as Exhibit "B".
6. Third-Party Defendants (NYC) Kings County Collection Unit and Yonatan Levoritz
and Victor Katkalov separately filed motions to dismiss the Third-Party Complaint on several
grounds, including that the pleading was not proper under CPLR 1007. Third-Party Plaintiff
opposed the motions.
7. On April 23, 2014, all parties appeared before the Civil Court (Dear, J.) for a trial and
motion conference. On the record, Plaintiff New Century Financial Services Inc. agreed to
discontinue the original action without prejudice. Third-Party Plaintiff Krichevsky withdrew his
counterclaims against New Century but refused to withdraw his third-party complaint against the
third-party defendants. The Civil Court provided Third-Party Defendants Support Magistrate
Fasone and Elena Svenson until Monday, April 28, 2014 to serve a motion to dismiss;
Krichevsky must serve opposition papers on or before May 12, 2014; and any reply papers are
due to be served on or before May 19th, 2014.
3
8. As detailed in the accompanying memorandum of law, the complaint should be
dismissed as to Support Magistrate Fasone on the grounds that the Court lacks subject matter
jurisdiction over this action, including third-party joinder, as to the State and its employees
because this action is not brought in the Court of Claims; the Civil Court does not have
jurisdiction (a) concerning Family Court matters, including the review of decisions and orders,
any judge or support magistrate of the Family Court of the State of New York, Kings County and
(b) claims exceeding $25,000; Support Magistrate Fasone is entitled to absolute judicial and
quasi-judicial immunity; and the Third-Party Complaint is not a proper pleading under'CPLR
. 1007.
WHEREFORE, for all the foregoing reasons the deponent respectfully requests that the
Court grant an order and judgment dismissing the Third-party Complaint in its entirety and
granting judgment on behalf of Support Magistrate Fasone and against the plaintiff in this action
and for such further relief as the Court deems just and proper.
CHARLES F. SANDERS
Sworn to before me this
2^,
Michael $iudzi\
Assistant Attorney General
of the State of New York