LORNA LAMOTTE MOTION TO DISMISS 2ND AMENDED COMPLAINT | Collateral Estoppel | Private Law

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ^ re: ELENA SVENSON Debtor

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Case No. 1-12-43050-ess Chapter 7

"V"

MICHAEL KRICHEVSKY Plaintiff -againstELENA SVENSON Defendant/debtor BOARD TF MANAGERS OF OCEANA CONDOMINIUM NO TWO, INTERNAL REVENUE SERVICE Defendants/Creditors VICTORIA EDELSTEIN, BORIS KOTLYAR, COOPER SQUARE REALTY, TNG. LANA KAPLUM, personally, FARTD BADALOV personally, BORIS MEYDID, personally IOHN DOE AND JANE JOHNS personally (fictitious names) Defendants.

Adv. Pro. No: 12-1229-ess

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

The Law Offices of Lorna J LaMotte PLLC By: 7s/ Lorna J LaMotte Lorna J. LaMotte, Esq. Attorney for Debtor/Defendant Elena Svenson 65 Broadway Suite 839 New York, New York 10006 (212) 430-6516

To:

Michael Krichevsky, Plaintiff Pro Se 4221 Atlantic Avenue Brooklyn, New York 11224 Sarah T. Mayhew Esq. US Dept of Justice Tax Division Civil Trial Sect, Northern Region Po Box 55 Ben Franklin Station Washington DC 20044 United States Trustee 271 Cadman Plaza East Suite 4529 Brooklyn, New York 11201

Law Office of Ethan Ganc Attorneys for Boris Kotlyar and Victoria Edelstein 99 Madison Avenue, Suite 5009 New York, New York 10016 Barry G. Margolis, Esq. Abrams Garfinkel Margolis Bergson LLP Attorneys for Board of Managers of Oceana Condominium No. Two; Cooper Square Realty, Inc.; Lana Kaplxm,Farid Badalov; and Boris Meydid 1430 Boradway 17th floor New York, NY 10018

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK

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In re:
ELENA SVENSON Debtor Case No. 1-12-43050-ess Chapter 7

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MICHAEL KRICHEVSKY Plaintiff -againstELENA SVENSON Defendant/debtor BOARD IF MANAGERS OF OCEANA CONDOMINIUM NO TWO, INTERNAL REVENUE SERVICE Defendants/Creditors VICTORIA EDELSTEIN, BORIS KOTLYAR, COOPER SQUARE REALTY, INC. LANA KAPLUN, personally, FARID BADALOV personally, BORIS MEYDID, personally JOHN DOE AND JANE JOHNS personally (fictitious names) Defendants. X APPLICATION IN SUPPORT OF MOTION TO DISMISS Adv. Pro. No: 12-1229-ess

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 THE REQUIREMENTS 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 AND BREACH 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 or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of he general business law; 8) an action based upon fraud; the tune within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable 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 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 in Plaintiffs Second cause of action of Plaintiff s second amended Adversary complaint dated April 8,2013.
1

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 ACTION FOR FRAUD, CONSTRUCTIVE TRUST, PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT ARE BARRED BY THE DOCTRINE OF RES 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).").

cause of action for Unjust Enrichment and Constructive Trust flow from the alleged fraud and therefore cannot stand. Furthermore the statute of limitation on Unjust Enrichments is 3 years pursuant to CPLR 214 as it pertains to the Fifth Cause of Action.

2The

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 OF ACTION 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 TORTUOUS INTERFERENCE 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 SYENS 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 York May 16,2013

The Law Offices of Lorna J LaMotte PLLC Attorney for Defendant Elena Svenson /s/ Lorna J LaMotte By: Lorna J LaMotte, Esq. 65 Broadway, Suite 839 New York, New York 10006 (212)430-6516

TO:

Michael Krichevsky, Plaintiff 4221 Atlantic Avenue Brooklyn, New York 11224

Law Office of Ethan Ganc Attorneys for Boris Kotlyar and Victoria Edelstein 99 Madison Avenue, Suite 5009 New York, New York 10016

Sarah T. Mayhew Esq. US Dept of Justice Tax Division Civil Trial Sect, Northern Region Po Box 55 Ben Franklin Station Washington DC 20044

Barry G. Margolis, Esq. Abrams GarGnkel Margolis Bergson LLP Attorneys for Board of Managers of Oceana Condominium No. Two; et al 1430 Boradway 17th floor New York, NY 10018

United States Trustee 271 Cadman Plaza East Suite 4529 Brooklyn, New York 11201

EXHIBIT A

SUPREME COW OF THE STATE OF NEW YORK MICHAEL KR1CHEVSKY,
Plaintiff,

.SUMMONS
VICTORIA

ELAIN1IFF DESIGNATES KINGS COUNTY AS TH^ HACE OF TRIAL,

Brookfrn, NY J1235
Tothc^oveaamedDcfeBdaots:

LOCATIC^OF
2502 86tfe Street BSOOKL1H, HT 11214

or complaint
2008

SUP8EMECOURT DP THE STATE OF MEW YOSK COUNTY OF KINGS, ~ : : — ~ x
MICHAEL KKICBEVSKY, Plaintiff;

INDEX No.:
VERIFIED COMPLAINT

ELEHASVENSON, VICTORIA , BQRSS KOTLYAR, Premises: 120 OceaBa Drive West, Apt SD Brooklyn, NY 11235

Michael Krichevsky, by his attorneys, Baisamo & Rosenblatt LLP, as;and for Ms CoaaptiaA, re^ectfully alleges: PARHES

1. PtantiffMieb^lKridiev^raKdes in the County of Kjngs, State of New Yor^ 1 IMendairElem Sveasonreadesat 2620 Oc^ i 1235, C<ju^ of Kiflgs, Sta» ef New Yorit. 3.
Ooeana Drive West Apt 5D,Broold^i, NY 11235. .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, ttitffiitif^wffy u'.fwfiriyi wftfa. bject premises as well
7. On fir fthmrt piytfther-^BOft, ne^yn^fflffiyCTtf»^«M"^" a fFB^TTl^ttf Ifflgfr flgrfffnMurf ^yife ^ie

ii--':-,!1 • • Ij^i1.-;-^

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 tlwsal^ect 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 2580 i
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^^iaelKriclKrvslgr aadEta»aSv«sscmbeefflae&e owaKs ia lee of resd pn^ei^ kaowa as awl located at 120 Oceana Driro West^ Aft. SD> ft^oklyD, 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
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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, Mi^ia^ 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&ly
incjodmg montage ps^ vtfflity Ganges, tastes and intifiiM oaiying exposes were approximately $3,600,00, Said monthly

20, "thereafter, on or about A^ost 11, 20^, Jfidiad refiaeoiocd &«r mortgs^e and rat^sd ii^o a ^a coasoKdailon, «ctensionand modifioatkat a^eemem -wiiereby WadiiiigtoD Mitfoal Bade, NA. became the holder of a coffiolictoeckBQte is the amount of $565,000. 21. All moB&fy casing
nnepJs, i^ifity charges, taxes and maintenance fees, were soldyaixl completely, laintiff Michael iCriebevsky. Said monflilycarryii^expttises were, aad be, ^proxknately $4^00,00, . I

22, Bi ad<fidoa, on or about December 2001, the pages subject coadominimn
a^ociated 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.

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/ 2£ At ibead?!^ of a&awoaiHfflit, theftssfcr t to avoid an appcataoca of impropriety.

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premises and entered Jtoo a ooe-ycar lease agre<anent wi& VictoJaEdelstin at a monthly rent of $2^00, Tht tease
3% animal increases.

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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 thetime,plaintiff had an intee^edjmrda^r fir 1i» mibject piamses. . Edelstin that he Vrtjuld not raiew bar lease. Noneto?^EdeIstHire&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 condonimi 30. 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 Iwse^esDOKtf 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 i 33. UpcmiHforaiatkjn, and beBsfc SBK»
coSoGtasdislainaUxeirt monies recel^ fora in any r^ard to the fiscal tespoimbilitiesassocia^willi^^ subject ;

(Breach of oial a^eemeat) 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«vcyofa sommaiy holdover proceeding eonffloeaced by bo&Kridiew8iyan4 an intentionalfeeacfeof the parties1

5181366*8 ability to sell tfce unit
trial, but ao;less1iian $600,000.

I

i Svoisoa's actions have substontklly damaged plamtiff inan arowmtto be detenninedat

38. Plaintiff rep^ and reaUegweacfe of the Mkgati^ 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
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.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 the carrying costs and expenses, and, should be otdeted to transfer all rent monies collected fiom tbe subject premises to plaintiff,
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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,
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(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 amountto 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)

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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 propertyto 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 contaiaeid the same fesce and «£fert'as if feBy set fi»fe at length baein, 54. Defeadant? Bave inte^onaJfy 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 Defe^aats 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^ff^it ffititiedtoajijdgmeirtfordasiagesmanaimimttobed
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4

WHEREFORE, pfofgtrff4<imftn<fgjndffyngn*' as follows:
a) On plaintiffs finrtcai^ of ^oajodgmcot in the a^

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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, midjudgment 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
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disbrasemeats of &b «^<m; and, i) FOTallcaasanddistorseaiftilB associated wi&tfas action,- a»C

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EXHIBIT B

SUPREME COURT OF THE STATE OF NEW YORK -COUNTY INDEX NO. 33343/2008 MICHAEL KRICHEVSKY, Plaintiff, AMENDED COMPLAINT -againstELENA SVENSON, KOTLYAR, VICTORIA EDELSTEIN Defendants. & BORIS

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 monmto-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

50. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-49 with the 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 54. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-53 with the 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 " 58. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-57 with the same force and effect as if My set forth at length herein. 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 62. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-61 with the same force and effect as if fully set forth at length herein. 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 67. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-66 with the same force and effect as if folly set forth at length herein. 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

71. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-70 with the same force and effect as if fully set forth at length herein. 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

77. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-76 with the same force and effect as if My set forth at length herein.

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

83. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-82 with the same force and effect as if fully set forth at length herein. 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

86. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-85 with the same force and effect as if folly set forth at length herein.

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

89. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1-88 with the same force and effect as if fully set forth at length herein. 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 the
i

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

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 plus additional 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 the rents 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 York February 16,201 Michael Krichevsky, Pro Se 2502 86th Street Brooklyn, New York 11214 718-687-2300

BIANCANELLO & BLANCANELLO, P.C. Attorneys forEELENA SVENSON 500 Jericho Turnpike Mneola, New York 11501 NICHOLAS RATUSH, S. Attorney for Defendants EDELSTEIN AND KOTLYAR 299 Broadway, Suite 605 NewYoikyNewYoric 10007

22

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS INDEX NO. 33343/2008 MICHAEL KRICHEVSKY, Plaintiff, AFFIDAVIT OF MAIL SERVICE

-againstELENA SVENSON, VICTORIA EDELSTEIN & BORIS KOTLYAR, Defendants.

STATE OF NEW YORK COUNTY 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 of
age.

On the /'7 day of February, 2010,1 served the within Notice of Cross-Motion together with Supporting Affidavit, by depositing true copies thereof enclosed in a post-paid wrapper, in on ofBcial depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to the following at the last known address set forth below: BIANCANELLO & BIANCANELLO, P.C. Attorneys for Defendant Elena Svenson 500 Jericho Turnpike Mmeola, New York I1501 NICHOLAS RATUSH, S. Attorney for Defendants Edelstein 299 Broadway, Suite 605 New York, New York 10007

Sworn to before me on February J7 ,2010
* z 4*,. ,1-Ci \, ,

No- 24^98570 Qualified^ iWjs County Commission £xpiresxJiiy 27,20

N .:>.•". ^5!i\State of New York

-.. Notary Pubfc State of New York Mo. 24-4399570 QuaBfiedb Kings 001 Expires Jdy27

SUPREME COURT OF THE STATE OF NEW YORK COUNTY 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 fee State of New York, held in and for the County of Rings, atthe Courthouse, at Civic Center, Brooklyn, New York, on,the 30th day of/September, 2011.

PRESENT: ' HON.BERTA.BUNYAN/
Justice.

-X

MICHAEL K&CHEVSKY,
Plaintiff, •; - against -

DECISION AND OKDER
Index-No. 33343/08

ELENA SVE^SON, •
' VICTORIA BOELSTEIN, and
BORBKOTLYAR,

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 . . . ,
r

Paners Numbered

1-2:4-5: 7-8: 9-10: 3:6: •

13-14

1L12:'-15-16

• ; ••
19-20

17 -1-8 •

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

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

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 oneyearlease 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
and Svenson obtained from JPMorgan ChaseBankan $85,000 line of credit 'secured by the apartment This line-of credit was refinancedwitjia $183,267: secured Erie 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 • •• .' . '
1- InNoveraber 2003, plaintiff

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
•i In 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 his
j

verified complaint) alleged that

j

"Defendant Elena Svenson has breached her oral .agreement to share 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 with Plaintiff's ability to sell the subject [apartment]. • • "Defendants Victoria Edelst[e]in and Boris .Kotlyar have intentionally interfered with Plaintiffs ability to selithe subject [apartment] as well. I
i I • •

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

•Based on the .aforementioned allegations as they are more fully amplified elsewhere in.the 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 economic j ' . • 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 a
I .* " .

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 to October 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]). 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.".

This cause of action is also- untimely "(.see

• • •

• • :• ..

•• "

' 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 Answer and 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 least until February 25, 2009 and allow them time 'to retain new counsel.

13 '

If you have any questions, please do not hesitate to contact 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 in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which, a firm with • which the lawyer formerly was associated had previously represented a client; • (1) whose interests are materially adverse to feat person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 [Confidentiality of mfonnation] or paragraph (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 or former firm has formerly represented a client in a- matter shall not thereafter.: (1) use confidential information of fee former client protected by Rale- 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 byRule 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 of the State of New York, held in and for the" County of Kings at 330 Jay Street, Brooklyn, New York, on the 2nd day of April 2012. P R E S I D I N G : HON. PAULA J. HEFNER Acting Justice of the Supreme Court

-x
In the Matter of a Proceeding for Support under Article IV of the Family Court Act, DECISION AND ORDER ELENA SVENSON, Petitioner, - against MICHAEL KRICHEVSKY, Respondent. Docket Number F-28901-08/10A&B Objection #'3 on Supp "A" Objection #'4 on Supp WB"! (After filing of Objections)

NOTICE:

YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT. PURSUANT TO §1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELIANT, WHICHEVER IS EARLIEST.

NOTICE:

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 first objection was filed-by the Petitioner on August 18, 2009 to an interim order of support. On October 9, 2009, Petitioner withdrew the Objection. The second objection was filed "by the Respondent on April 2, 2010 to the Final Order of Support issued by Support Magistrate Fasone on February 3, 2010. The undersigned denied the Objection on June 2, 2010 based on procedural grounds due to the untimely filing of the Objection. The third Objection was filed by the Respondent on August 9, 2010 to the Support Magistrate's verbal refusal to recuse himself. The Objection was denied on procedural grounds as the Objection was not ripe for review. The fourth motion was filed by the Respondent on July 5, 2011 and decided on October 18, 2011, An objection was filed by the Respondent on August 18, 2011 and was denied on procedural grounds. 2 The Support Magistrate did not deviate from the full amount required under the Child Support Standards Act. The Petitioner'-s adjusted gross, income was 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 of which the Petitioner's pro rata share was calculated at 13% and the Respondent's pro rata share at 87%. Pursuant to the Child Support Standards Act, the Support Magistrate determined the annual child support obligation for the parties' child was 17% of their adjusted gross income or $22,100.00 for the 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 the statutory 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. The Respondent's share for the income below $130,000($1,602 .25} when combined with the Respondent's share for the income above $130,000.00, ($443.03), resulted in 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 August
a

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
n B,"

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 the proceeding with the exception of the modification entered June l, 2011 on Supplemental "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" to Support Magistrate Fasone's final order entered on July 6, 2011, which was denied 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
i

oral argument. Petitioner and Respondent were directed to submit 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

1

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
n bias,

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 service indicating that on January 20,2012, Nelli Frid, a person over the age of eighteen and not a party to the action, personally served a copy of the Objections to the Petitioner. The affidavit was*notarized on January 23, 20i2. s

Michael Krichevsky, Affidavit in Support, January 20, 2012 ^ is. Michael Krichevsky, Affidavit in Support, January 2 0 , 2012 U 16,

7

8 The date stamp on the objection states "2011 Jan 18 AM 9 : 0 0 " and is crossed out. Underneath the date stamp, it states "Jan. 23 PM 4:34 PTP." PTP are 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 of 2012 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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