UNITED STATES BANKRUPTCY COURT RETURN DATE: August 1, 2013 EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x IN THE MATTER OF: ELENA

SVENSON, CASE NO. 1-12-43050-ess Debtor. CHAPTER 7 --------------------------------------------------------x MICHAEL KRICHEVSKY, Plaintiff/Creditor, v. ELENA SVENSON, Adversary Proceeding No. 12-01229-ess Defendant/debtor, BOARD OF MANAGERS OF OCEANA CONDOMINIUM NO. TWO; INTERNAL REVENUE SERVICE, INC., Defendants/Creditors, VICTORIA EDELSTEIN, DDS; BORIS KOTLYAR, COOPER SQUARE REALTY, INC; LANA KAPLUN, personally; FARID BADALOV, personally; BORIS MEYDID, personally; JOHN DOE and JANE JOHNS, personally (fictitious names to be discovered), Defendants. ---------------------------------------------------------------x VICTORIA EDELSTEIN, DDS and BORIS KOTLYAR, Cross-Claimants, v. MICHAEL KRICHEVSKY, Cross-Defendant. -----------------------------------------------------------------x OBJECTION, REPLY TO DEFENDANT’S SVENSON MOTION TO DISSMIS MICHAEL KRICHEVSKY, Pro Se, under penalty of perjury, deposes and says: 1. I am the plaintiff in the within action. 2. I make this objection and affidavit in opposition to the motion to dismiss SECOND AMENDED COMPLAINT (SAC). ASSERTION OF CONSTITUTIONAL RIGHTS AND MEMORANDUM OF LAW 3. United States Constitution and Constitution of the State of New York protect individual

constitutional rights to form a contract and conduct commerce. Therefore, “All laws which are repugnant to the Constitution are null and void." Marbury v. Madison, 5 U.S.137, 174,176. A law that "impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional." Mobile v. Bolden, 446 US 55, 76; Harris v. McRae, 448 US 297,312. 4. A law that improperly infringes on Constitutional Rights is void from its inception and no person can be obligated to obey such a law. 16A Am Jur2d Constitutional Law, Section 203.5 5. "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them." Miranda v. Arizona, 384 U.S. 436. 6. The Supreme Court has forcefully established that court proceedings must be within Constitutional provisions. Smith v. US, 360 US 1; Muskrat v. United States, 219 US 346. 7. "But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it." Yakus v. U.S., 321 U.S., 414 pg. 468. Violation of Constitutional Rights voids in personam jurisdiction. 8. "A judgment rendered in violation of due process is void." World Wide Volkswagen v. Woodsen, 444 U.S. 286, 291; National Bank v. Wiley, 195 US 257; Pennoyer v. Neff, 95 US 714. 9. "If the Bill of Rights is not complied with, the court no longer has jurisdiction to proceed. The judgment ... pronounced by a court without jurisdiction is void ... " Johnson v. Zerbst, 304 US 458,468. 10. . " ... the requirements of due process must be met before the court can properly assert in

personam jurisdiction." Wells Fargo v. Wells Fargo, 556 F2d 406, 416. 11. . "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process." Vachon v. New Hampshire, 414 US 478. Assertion Of Constitutional Right To Petition Government For Redress Of Grievances 12. Plaintiff, Pro Se for the 2nd time requests the court and its officers to be mindful of his Pro Se status. In cases and precedents that mostly reported, there is a presumption that party represented by trained and licensed attorneys. KRICHEVSKY, however, is none of them. Below are the cases that apply directly to Plaintiff’s status: Wright v. SZCZUR, Dist. Court, WD New York (2012) “Although pled inartfully and in a rather conclusory fashion, considering the Wrights' pro se status, such allegations state a valid claim under the Fourteenth Amendment's Due Process Clause. See Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir.1991) ("[T]he Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel."). See also “The Erie County Defendants argue that they are entitled to qualified immunity, which protects officials from § 1983 liability if their actions (1) did not violate clearly established law or (2) were objectively reasonable. See Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999). However, if the Wrights establish that these Defendants violated their constitutional right to care

for their children, they are not entitled to this immunity for two reasons. First, this law is clearly established. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (noting Supreme Court's "historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment"). Second, without more facts, this Court cannot conclude that it was objectively reasonable for these Defendants to believe that their conduct did not violate the Wrights' rights. It is alleged that they misrepresented and forged documents and testimony. Such acts are not objectively reasonable; Defendants are therefore not entitled to the protections of qualified immunity at this time. 13. In Harnett v. Barr, 538 F. Supp. 2d 511 (2008) the court stated: Motion to Dismiss A court may not dismiss an action pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (citing inter alia Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The court must accept the material facts alleged in the complaint as true. Id. (citing Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam)). In determining whether a complaint states a cause of action, great liberality is afforded to pro se litigants. Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir.1991) (citation omitted).

B. Motion to Amend the Complaint In using its discretion in determining whether to allow a party leave to amend, the court must follow Fed.R.Civ.P. 15(a) which provides that leave to amend will be granted "freely . . . when justice so requires." Fed.R.Civ.P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The court may also, "on just terms", grant a party leave to supplement, setting forth transactions, occurrences, or events that happened after the date of the pleading to be supplemented. Fed.R.Civ.P. 15(d). A court may allow supplementation even if the original pleading is defective in stating a claim or defense. Id. The standards for a motion to amend and a motion to supplement are the same. See Smith v. Goord, 04-CV-6432, 2006 WL 2850597, *1, 2006 U.S. Dist. LEXIS 74015, *3-4 (W.D.N.Y. Sept. 22, 2006 (emphasis added) 14. In Kemer v. Johnson, 900 F. Supp. 677 (1995) the court stated: "In order to justify the dismissal of a pro se complaint, it must be `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Platsky, 953 F.2d at 28 (quoting Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 595). 15. In Philippeaux v. North Central Bronx Hosp., 871 F. Supp. 640 (1994) the court stated: “Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. In making this judgment, the

burden is on the moving party, and all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In addition, when determining whether to grant summary judgment in discrimination cases in which intent is an issue, the court must exercise extra caution. Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir.1994). This extra caution is further warranted in cases such as this one in which there has been only limited document discovery. Finally, this Court must construe a pro se complaint more liberally and apply a more flexible standard in determining whether the plaintiff has stated a cause of action. See Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir.1991). Thus, in determining whether to grant summary judgment, this Court must (i) determine whether a factual dispute exists, and (ii) determine, based on the substantive law at issue, whether the fact in dispute is material.” 16. Haines v. Kerner, 404 U.S. 519-421(1995); In re Haines: “pro se litigants are held to less stringent pleading standards than admitted or licensed bar attorneys.” “Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the opportunity to submit evidence in support of their claims.” 17. Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000); In re Anastasoff: litigants' constitutional (guaranteed) rights are violated when courts depart from precedent where

parties are similarly situated. The court stated:“Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177-78, 900*900 2 L.Ed. 60 (1803). This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821). These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded.” See also “It is often said among judges that the volume of appeals is so high ... We do not have time to do a decent enough job...the remedy, instead, is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case.” 18. In instant case, every party except KRICHEVSKY represented by licensed attorneys. 19. If this Honorable court finds any problem with KRICHEVSKY’s SAC, he moves this Honorable court to give him instructions on how to repair it. 20. KRICHEVSKY particularly objects to defendant’s attorney “BACKGROUND” in instant motion as fraudulent and misleading the court. 21. KRICHEVSKY objects to unsworn testimony of Ms. LaMotte. This motion is futilely defective. It does not have an affidavit attached or court record of testimony attached that Ms. LaMotte can quote from. In the absence of these, she is merely testifying without firsthand knowledge, which is hearsay. If she insists that she is a witness, then she cannot represent Defendant and KRICHEVSKY has a right to examine her. 22. Notwithstanding the above, KRICHEVSKY avers that Ms. LaMotte intentionally misleading the court. Particularly in ¶5 of her motion to dismiss she states:

“After the expiration of the initial term dispute resulted from the subsequent occupancy of the apartment, the term of the lease and became an additional front upon which plaintiff and Svenson did battle.” 23. She is completely ignoring averments of KRICHEVSKY’s AMENDED COMPLAINT and SAC, and misquoting them. Briefly, after the 1st year expiration of lease with EDELSTEIN, she decided not to renew it for an additional 3 years. There was no disagreement and there was no battle. EDELSTEIN offered SVENSON and KRICHEVSKY month-to-month lease and they agreed. This month-to-month lease begun in December of 2006 and lawful occupation continued until 2008. At that time, EDELSTEIN and SVENSON conspired behind KRICHEVSKY back and created fraudulent backdated lease signed by SVENSON, without KRICHEVSKY’s knowledge and consent. It was done with the goal to hinder and delay the sale of the UNIT. It was done to extort money and force KRICHEVSKY to short sell the UNIT to EDELSTEIN and KOTLYAR. This, in turn, gave rise to KRICHEVSKY’s claim for fraudulent conveyance and other torts. This is why KRICHEVSKY brought in this court EDELSTEIN and KOTLYAR as aiders and abettors, conspirators and tortfeasors. SVENSON’s torts and theirs committed against KRICHEVSKY made them jointly liable. Claims for fraudulent conveyance and conversion is what this bankruptcy court is dealing on the regular basis. 24. This motion is frivolous because Ms. LaMotte ignores KRICHEVSKY’s PRO SE status and applies plausibility standard to his pleadings even though she was notified by him and is aware of it. In this motion, she acknowledges his PRO SE status, crosses out the controlling law prescribing liberal attitude toward PRO SE pleadings, and goes on to argue that his pleadings does not conform to heightened plausibility standard. This standard presumes that

the pleading is done by experienced and licensed attorney. The case law in this area is controversial now, and even licensed and experienced attorneys very often make mistakes requiring amendment of the pleadings. Her argument goes against controlling case Foman v. Davis, 371 US 178 - Supreme Court 1962 where the court eloquently stated: It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U. S. 41, 48. The Rules themselves provide that they are to be construed "to secure the just, speedy, and inexpensive determination of every action." Rule 1. 25. In reply to the argument that SAC is not compliant with Federal rule of Civil Procedure 9(b), KRICHEVSKY states that this argument is frivolous and meritless. SAC has 192 paragraphs particularly stating the dates, times, places and statements of what was said and done to give SVENSON notice of transactions. KRICHEVSKY demands that SVENSON points out the number of paragraph, or quote a statement which is not sufficiently particular. And for that a motion for more definite statement is appropriate. 26. In ¶ 20 Ms. LaMotte shamelessly lying and misleading the court by stating: “Plaintiff’s entire complaint is framed on broad terms, he attributes several broad statements to Svenson, but never specifies the statement that he “justifiably” relied upon in order to allege fraud.” 27. In fact, KRICHEVSKY avers in ¶ 115 of his SAC:
“SVENSON

knew that she was not divorced, because she was married from 1988 until 1994 to SAM. Accordingly, it was misrepresentation of material fact, known to be false when made, to induce KRICHEVSKY to rely on misrepresented fact. KRICHEVSKY justifiably relied on misrepresentation that she is divorced and honest with him. This fraudulent concealment and misrepresentation later on

detrimentally resulted in damages.” 28. In ¶ ¶ 135 – 136 of SAC KRICHEVSKY avers: “KRICHEVSKY trusted SVENSON and justifiably relied on her misrepresentations and
fraudulent concealment to his detriment and loss.

Her misrepresentations, fraudulent concealment of truth and deceit continued from 1991 until present and KRICHEVSKY invokes doctrines of continuous violation and equitable tolling to deny SVENSON’s affirmative defense of statute of limitation. 29. Ms. LaMotte admits to truth of KRICHEVSKY’s averments regarding fraud and that SVENSON did not attend medical school, but then she is misleadingly implying that KRICHEVSKY knew or should have known that SVENSON is not attending medical school. She goes on to say that KRICHEVSKY failed to exercise ordinary intelligence and should have figured out that SVENSON is a gold digger and the scam artist. Unfortunately, KRICHEVSKY was not intelligence officer and did not have means to do surveillance as he was working 60 to 80 hours per week. To add more insult to the injury, Ms. LaMotte is quoting Kurtz v. Foy, 65 AD3d 741, 743 (2009). This case starts with: “In November 2004, plaintiffs purchased from defendants a 3.28-acre parcel of lakefront property in the Town of Greenfield, Saratoga County. A dirt-and-gravel roadway known as Braden Road runs across the property, roughly parallel to the shoreline. Plaintiffs claim that prior to their purchase and in response to their inquiries, defendants repeatedly assured them that the roadway was private.” 30. The case continue on to say that defendants who turn out to be a con artists were able to fool and cheat New York State licensed real estate attorney and the real estate agent by selling them public land. It is almost like selling Brooklyn Bridge to private parties, which represented by an attorney. Aside the legal malpractice committed by this attorney, who failed to check public records, defendants admitted to fraud, but argued that he failed to exercise ordinary intelligence by not checking public records and filed motion to dismiss for

failure to state a claim. The court stated: “However, a purchaser's failure to determine a transaction's true nature by inspecting public records is not fatal when "the facts were peculiarly within the knowledge of the defendant[] and were willfully misrepresented" 31. Ms. LaMotte shamelessly implying that KRICHEVSKY should have hired New York State licensed divorce attorney who should have checked public records database of “con artists and gold diggers” before going in bed with SVENSON. Too bad that KRICHEVSKY did not know Ms. LaMotte at that time and did not hire her. However, doing ordinary intelligence (per legal advice of Ms. LaMotte) and looking for “con artists and gold diggers” public records database to see if SVENSON registered there, KRICHEVSKY came to conclusion that such a database does not exist, and never existed. What ordinary intelligence did KRICHEVSKY failed to do in order to discover “werewolf”? 32. The court continued in that case: “plaintiffs allege that the failure to disclose this information in response to their inquiries constituted willful misrepresentation. We agree that, viewed in the light most favorable to plaintiffs, the pleadings sufficiently state causes of action in fraud and negligent misrepresentation. Ordered that the order is affirmed, with costs.”

33. Shame on you, Ms. LaMotte! This case actually supports KRICHEVSKY’s plausible claims for fraud in New York, and you just attempted to mislead the court and have his complaint fraudulently dismissed in violation of Federal Rules of Civil Procedure 11. 34. In reply to argument that certain causes of action for fraud and breach of contract timebarred, Krichevsky avers that it is similarly misleading. New York State has exception to 6 years fraud statute of limitation rule. New York law provides that after discovery of fraud, Plaintiff has 2 years to start litigation. KRICHEVSKY, contrary to Ms. LaMotte’s misleading

allegations, timely asked the court to add claims for fraud based on newly discovered evidence. See Kaufman v. Cohen, 307 AD 2d 113 - NY: Appellate Div., 1st Dept. (2003)
“Nevertheless,

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

claims is persuasive. "A cause of action sounding in fraud must be commenced within 6 years from the date of the fraudulent act or 2 years from the date the party discovered the fraud or could, with due diligence, have discovered it" (Ghandour v Shearson Lehman Bros., 213 AD2d 304, 305 [1995], lv denied 86 NY2d 710 [1995]; CPLR 213 [8]; 203 [g]).[4] The discovery accrual rule also applies to fraud-based breach of fiduciary duty claims (see Yatter v William Morris Agency, 268 AD2d 335, 336 [2000]; Whitney Holdings, Ltd. v 123*123 Givotovsky, 988 F Supp at 744).” This case shows that trial court erred in denying plaintiff leave to amend when KRICHEVSKY submitted witness affidavit showing the date, time and place of discovery of fraud, exhibit A. 35. if SVENSON wants to argue that point, KRICHEVSKY moves this Honorable court to order evidentiary hearing to determine finality of Honorable Bert Bunyan order. 36. If not for SVENSON’s bankruptcy filings that stayed Supreme Court’s proceedings, KRICHEVSKY was preparing a notice of appeal, which he would have filed on time. Additionally, the court in above mentioned case stated: "[A] defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]). The doctrine requires proof that the defendant made an actual misrepresentation or, if a fiduciary, concealed facts which he was required to disclose, that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action (Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 122 [1985], affd 67 NY2d 981 [1986]; Jordan v Ford Motor Co., 73 AD2d 422, 424 [1980]). 37. As KRICHEVSKY stated before in his complaints and is stating now, which averments the

court may use to supplement SAC, SVENSON and KRICHEVSKY were in confidential and partnership relations with each other. As such, SVENSON owed a fiduciary duty of disclosure and utmost honesty to KRICHEVSKY. Her fraudulent concealment of the truth and constant promises of bright future after graduation from medical school kept KRICHEVSKY in the dark. He paid for babysitter, private schools for the child so that SVENSON could pick up the child at 6 pm after her medical school. He believed her that she is attending her school and justifiably relied on her promises of graduation from medical school, getting a job or starting a business and finally becoming productive member of the family and society. It was not until SVENSON started rejections of the jobs that KRICHEVSKY was coming across due to his ties in the community. Below stated incident was a “nail in the coffin of parties’ relationship” when KRICHEVSKY realized that SVENSON never intended to work and her charade of medical school was a scam to cover up her gold digger’s character. At or about 2006, KRICHEVSKY found a job for SVENSON with doctor neuropsychologist. SVENSON went on interview and sabotaged it so that she would not be hired. Before that, she told KRICHEVSKY that she needs some experience as psychologist in her resume and will go to volunteer in Mount Sinai Hospital in Manhattan as social worker for one year. Only God knows whether she did volunteer in this hospital. 38. KRICHEVSKY noticed that exhibit C in instant motion is not complete and presumes that something in this order is intentionally omitted. This exhibit is judge’s order, and this order stops on page 15. Therefore, KRICHEVSKY stops and rests on his affidavit at this point. He will travel to the New York State Supreme Court, in order to obtain complete copy and will continue his opposition afterwards. 39. KRICHEVSKY notifies defendant SVENSON that he would supplement his affidavit in

opposition to motion to dismiss after he obtains all necessary exhibits from the court. Dated: Brooklyn, New York June1, 2013 ______________________________ Michael Krichevsky, Pro Se

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