CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF KINGS
INDEX NO. 056717/2013
NEW CENTURY FINANTIAL SERVICES, INC.,
Third Party Plaintiff,
John Fasone, Yonatan Levoritz, Esq., Victor Katkalov, KINGS r-o c~,
COUNTY CHILD SUPPORT COLLECTION UNIT, Elena ~ ^
Svenson, §*; r~ ~
Third Party Defendant. ^o ( •
STATE OF NEW YORK ss.: ^7--,
COUNTY OF KINGS Ps5 2 33
_ LL ^3?
AFFIDAVIT OF PREJUDICE IN SUPPORT OF ORDER TO SHOW CAUSE^rcP
DISQUALIFY L'Abbate, Balkan, Colav ita & Contini, L.L.P.
MICHAEL KRICHEVSKY, PRO SE, being duly sworn, deposes and says:
1 . That I am the Plaintiff in the within action.
2. I make this affidavit in support of the Order to Show Cause annexed hereto.
3. Prior to the making of this OSC, your affiant contacted the defendants' attomey(s) in a
good faith effort to resolve the issues raised by this OSC, but from 20 1 0, they brazenly ignored me.
4. Attorneys have always been held in common law civilly liable for engaging in conduct
violative of their fiduciary duties to clients, despite the existence of professional rules under which
the attorneys could also have been disciplined. To prevent attorney from continuous breach of
fiduciary duties and/or engaging in unethical conduct, injunctive relief will lie where there is no
adequate remedy at law.
STATEMENT OF FACT
5. My former employer, HARLAN WITTENSTEIN, ESQ. was involved in a lawsuit in
SUPREME CORT COUNTY OF NASSAU titled DAVID BYTHEWOOD, ESQ. v. HARLAN
WITTENSTEIN and I am, as employee, the witness in this case, (Exhibit A).
6. As can be seen from exhibit A, Mr. WITTENSTEIN was represented by the same law firm
L'Abbate, Balkan, Colavita & Contini, L.L.P. that defendants LEVORITZ and KATKALOV
represented in this action.
7. I plan to call Mr. WITTENSTEIN as my witness against defendants.
8. I object that Mr. WITTENSTEIN will be rivalry deposed by his own attorneys about me,
not to mention that he provided them some information about my employment during discussions
of his personal action mentioned above.
9. I object to be rivalry deposed by my attorneys - the firm L'Abbate Balkan Colavita &
ARGUMENT: the firm L'Abbate Balkan Colavita & Contini, LLP involved in violation of
New York Rules of Professional Conduct and violation of 18 U.S.C. § 241
10. 18 US Code - Section 241: Conspiracy against rights states:
If two or more persons conspire to injure, oppress, threaten, or intimidate any
person in any State, Territory, Commonwealth, Possession, or District in the free
exercise or enjoyment of any right or privilege secured to him by the Constitution
or laws of the United States, or because of his having so exercised the same; or If
two or more persons go in disguise on the highway, or on the premises of another,
with intent to prevent or hinder his free exercise or enjoyment of any right or
privilege so secured -They shall be fined under this title or imprisoned not more
than ten years, or both; and if death results from the acts committed in violation of
this section or if such acts include kidnapping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill,
they shall be fined under this title or imprisoned for any term of years or for life, or
both, or may be sentenced to death.
11. Plaintiff is a former client of law firm L'Abbate Balkan Colavita & Contini, LLP as
employee of Wittenstein & Associates PC, which they represented in substantially similar matter
as current one. A lawyer or firm may not knowingly represent a person in the same or a
substantially related matter in which the lawyer's firm had previously represented a client:
• Whose interests are materially adverse to that person; and
• About whom the lawyer had acquired confidential information that is material to the
• Except with the affected client's consent after full disclosure.
12. The law is well settled that, "A lawyer's duty to his client is that of a fiduciary or trustee.
Hqfter v. Farkas, 498 F.2d 587, 589 (2d Cir. 1974); Spector v. Mermelstein, 361 F.Supp. 30, 38
(S.D.N.Y.1972)," see Cinema 5, Ltd. v. Cinerama, Inc., 528 F. 2d 1384 - Court of Appeals, 2nd
13. Nonetheless, L'Abbate Balkan Colavita & Contini, LLP proceeded in 2010 and are
proceeding now in violation of Federal criminal and civil laws.
14. New York's controlling case law is listed in my motion to take FIRST JUDICIAL
NOTICE with exhibits, which I fully incorporate by reference herein and move mis Hon. Court to
take Judicial Notice.
15. L'Abbate Balkan Colavita & Contini, LLP and its attorneys created answer to my
third-party complaint and filed a motion to dismiss my third-party complaint.
16. Besides the inherent conflict of interest described above, Mr. Nimberg in his affirmation in
support of his motion to dismiss knowingly made several factual statements without his firsthand
knowledge — an egregious violation of law governing lawyers.
17. His affirmations starts from, "I am fully familiar with the facts and circumstances involved
herein, based upon a review of the file maintained by my office and my personal participation in
this litigation." Accordingly, his file contains copies of perjurious statements and arguments of
Svenson and Levoritz - which I challenge as perjury and fraud upon the court. As the saying goes,
"garbage in - garbage out."
18. Mr. Nunberg's affirmation under penalty of perjury is parrotry of defendants'
perjury and misinformation disguised as an expert's opinion or fact witness testimony.
19. He starts to testify under penalty of perjury about matters beyond his personal knowledge
on behalf of his clients that "I am disgruntled plaintiff who doesn't want to pay the child
support..." First, this is his fraudulent attempt to enter his wishful facts in evidence that are not in
evidence and beyond the four corners of the complaint, which is inappropriate for the motion to
dismiss. His wishful facts are his biased opinion as an expert witness testimony.
20. Here is an example of Nunberg's parrotry from defendant's Levoritz perjurious affidavit in
instant case (from * [ [ 11 of Nunberg's affirmation):
"Remarkably, after the Family Court issued that ruling, Mr. Krichevsky
attempted to have the Judge recused claiming, as Mr. Krichevsky has in this action,
that the Judge was biased in favor of Ms. Svenson. See Ex. "L" to the Levoritz Aff.
In addition, Mr. Krichevsky served, but apparently did not file, a sanctions motion
against Mr. Levoritz in the Family Court Action. See Ex. "M" to the Levoritz Aff."
21. As I demonstrated by my exhibit 8 (attached), which clearly shows stamp of Family Court,
from my Order to Show Cause to strike Nunberg's affirmation -1 did in fact file cross-motion for
sanctions against Mr. Levoritz. Accordingly, Levoritz' Affidavit and Credibility are
impeached. What is now the affirmation of Mr. Nunberg based on impeached affidavit? It is fraud
upon the court by officer of the court, Mr. Nunberg.
22. Here is his perjurious fact witness testimony together with misleading case law which does
not apply in my situation:
"As a general rule, a party will be collaterally estopped from litigating claims
previously litigated in a prior action, where the party participated in the prior action
and had a full and fair opportunity to contest the prior determination. Vanderbilt
Realty Corp v. Gordon.134 A.D.2d 586, 521 N.Y.S.2d 489 (2d Dep't 1987); Wes
Sheet Metal Corp, v. Flushing Savings Bank, 132 A.D.2d 608, 517 N.Y.S.2d 768
(2d Dep't 1987). The doctrines of res judicata and collateral estoppel are designed
to put an end to a matter once it is duly decided (see Siegel, N. Y. Prac§442, at 747
23. What Mr. Nunberg called the res judicata and collateral estoppel -1 call it obstruction of
Justice and witness tampering - me, Michael Krichevsky. I will cross-examine Mr. Nunberg as to
the facts whether I, as plaintiff pro se, actually litigated claims, actually participated in the prior
action, and had a full and fair opportunity to contest the prior determination. Or, whether I was
bamboozled in concert by Mr. Nunberg and judge Bernadette Bayne in clear absence of subject
matter and personal jurisdiction over me, in violation of due process and whether the short form
order of judge Bernadette Bayne is void. In such case, no res judicata or collateral estoppel exists.
24. In If 24 of Nunberg's affirmation, he is shamelessly lying that I failed to state a cause of
"Moreover, as to the tortious interference with contract, Mr. Levoritz has failed to
plead or prove the required elements, which are: (1) the existence of a valid contract
between the plaintiff and a third party; (2) the defendant's knowledge of the
existence of that contract; (3) the intentional procurement by the defendant of the
breach of the contract; and (4) resultant damages to the plaintiff as a result of the
25. In 1 f 29 of my complaint I write, "at the time of the unlawf ul acts of Svenson, Knchevsky
was a rightf ul party to a valid contract with Citibank." In f 32 I write, "Additionally, during child
support proceedings Krichevsky notif ied all of the def endants on the record that he has a credit
card and that Svenson stole all of his bills - which Svenson immediately did not deny." In If 40 I
write, "Svenson hired Levoritz to act in the capacity of contractual assassin to destroy Krichevsky
f inancially. He succeeded by f raud upon the court. He deliberately slandered Krichevsky and
f alsely testif ied as unsworn expert witness - knowing that he would not be cross-examined under
oath as to his knowledge and evidence." In 1 42 I write, "as a direct and proximate result of the
above, the hearing resulted in unjust aid void f or f raud upon the com! order of support." In f 43,
inter alia, I write, "said payments were illegally intercepted by child support collection unit living
Krichevsky $1 50 per week." In If 44 I write, "malicious, retaliatory and vexatious litigation
conducted by Svenson impacted Krichevsky f inancially, spiritually, caused stress, loss of memory
and concentration. Because he abandoned his residence, he was not receiving bills and was not
paying on time. That in turn, procured Citibank to terminate said contract with Krichevsky." In If
48,1 write, "accordingly, Svenson intentionally procured Citibank to break said contract." In f 49
I write, "by reason of the f oregoing Krichevsky was damaged, continue to be damaged and will be
damaged in the f uture."
26. In 127 of Nunberg's af f irmation lies complete misinf ormation and an attempt to mislead
the court. This is what Mr. Nunberg has written:
"Here, the Levoritz Third-Party Def endants have not induced anyone to breach a
contract with Mr. Krichevsky. Mr. Krichevsky does not allege that the Plaintif f in
this action, New Century Financial Services, Inc., was induced by the Levoritz
Third-Party Def endants to breach a contract with Mr. Krichevsky. New Century
Financial Services, Inc. is attempting to enf orce its contract with Mr. Krichevsky,
not breach it. It is Mr. Krichevsky who breached his contract to pay his credit card.
Nothing that the Levoritz Third-Party Defendants did induced Mr. Krichevsky to
breach his contract."
27. I did not have contract with New Century Financial, therefore I did not have to allege that
Levoritz induced breach of contract with said corporation. Said corporation, allegedly is a debt
buyer of ray contract with Citibank. Shame on you, Mr. Nunberg for misleading the court, wasting
its time and mine.
28. I can go on and on indefinitely, but 1 think I made my point because all Nunberg's
arguments and memorandum of law springs from misleading presumption that the parties had full
and fair opportunity to litigate, were represented by lawyers, had unbiased judge and litigated in
absence of fraud upon the court. Perjury, fraud upon the court, corrupt lawyers, corrupt judges,
domestic terrorism by Svenson, Levoritz, Fasone and CSCU - is what I was faced with for the past
6 years of litigation.
29. Said parroting and perjurious testimony is very prejudicial to me because (1) the lawyer
might appear to vouch for his own credibility; (2) the lawyer's testimony might place me in a
difficult position when I have to cross-examine him as lawyer-adversary and attempt to impeach
his credibility; (3) I fear that the testifying attorney distorted the truth as a result of bias in favor of
his client; and (4) when an individual assumes the role of advocate and witness both, the line
between argument and evidence may be blurred, and the jury or judge might be confused.
30. As prior proceedings in Supreme Court and this proceeding has shown and I feel
personally that attorneys of the firm are not cooperative, ethical and motivated by animus and
hostility toward me.
31. I have a right and have no choice, but to cross-examine Mr. Nunberg as an expert and fact
witness in order to impeach his testimony. I plan to bring my own expert witness to rebut
defendant's testimony. Mr. Nunberg, as expert witness, cannot cross-examine my witness and if he
attempts to, I object to it already.
32. No previous application in this court for the relief requested herein has been made.
33. By proceeding against me, perjurious testimony and resulting fraud upon the court,
attorneys of L'Abbate Balkan Colavita & Contini, LLP involved in obstruction of Justice, fraud
upon the court and violation of New York Rules of Professional Conduct. Said acts violate my
Constitutional rights, common-law rights and statutory rights to due process and fair hearing,
taking away jurisdiction of this court.
WHEREFORE, it is respectfully requested that this application be granted in its entirety,
and for such other and further relief as to this Court seems just and proper.
Michael Krichevsky, Pro Se
Sworn to before me this