FAMILY COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________________________________________________ ELENA SVENSON, Petitioner, -againstMICHAEL KRICHEVSKY, Respondent

. _____________________________________________________ NOTICE OF MOTION TO RECUSE Oral argument requested DOCKET NO. F-28901-08/10B

COUNSELORS: PLEASE TAKE NOTICE, that upon the annexed affidavit of Michael Krichevsky, sworn to the day of July, 2010, an upon all the pleadings and proceedings heretofore had

herein, the undersigned will move this Court at Part 27, thereof, to be held at the Courthouse located at 330 Jay Street, Brooklyn, New York on the 13th day of July, 2010 at 11:00 a.m. in the forenoon of that day or as soon thereafter as counsel can be heard: For an order by the Court to Recuse himself and order new hearing, and for such other and further relief as to this Court seems just and proper. TAKE FURTHER NOTICE that, pursuant to Section 2214(b) of the Civil Practice Law and Rules, all answering papers, if any, shall be served at least seven (7) days before the return date of this motion. Dated: Brooklyn, New York July , 2010 ______________________________ Michael Krichevsky, Pro Se 4221 Atlantic Ave Brooklyn, New York 11224 (718) 687-2300 YONATAN LEVORITZ. Attorney for SVENSON 2306 Coney Island Ave, 2nd Fl

Brooklyn, NY 11223 1FAMILY COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X ELENA SVENSON, Petitioner, -againstMICHAEL KRICHEVSKY, Respondent. -----------------------------------------------------------------------X STATE OF NEW YORK) ) SS: COUNTY OF KINGS ) MICHAEL KRICHEVSKY, being duly sworn, deposes and says,
1.

File No: 142040 Docket No.:P-28901-08/10B AFFIDAVIT

I am the Respondent in this action. I have personal knowledge of the facts set forth herein. I respectfully submit this affidavit in support of Notice of Motion to Recuse and Order new hearing. STATEMENT OF FACTS

2. On October 27, 2008 Petitioner quietly filed fraudulent Petition for Order of Protection against Respondent forcing him out of his apartment on 4336 Manhattan Ave in Brooklyn, New York which Petitioner abandoned in summer of 2008 and moved to her apartment at 2620 Ocean Pkwy, Apt 3K, Brooklyn, New York.
3.

After Police came to arrest Respondent, but missed him Respondent fled this apartment as he knew that he will be arrested if he stayed there.

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4. Respondent appeared with his attorney in Kings County Family Court for a hearing on said order.
5.

During said hearing it became obvious that her complaint is sham. Petitioner withdrew said petition and it was dismissed.

6.

Next, after refusing parties’ private DNA testing proposed by Respondent, Petitioner filed motion to estop respondent from getting DNA test ordered by the court, and after about 6 month of motion practice withdrew her motion again and undergone said testing.

7. Next, Petitioner filed Objection to Temporary Order of Support and after getting Respondent’s reply to said Objection withdrew it again. 8. Next, her attorney Yonatan Levoritz served harassing subpoenas and notices to produce together with notices of depositions upon Sergey Drapkin, Concela Engineering, P.C., Leon Mandel and Leon Construction. It was done in complete disobedience of Magistrate’s Fasone order authorizing only subpoenas for Banks. Respondent had no choice, but to file motion to quash. 9. In response to such abuse of process Respondent’s attorney in this Motion to Quash asked the court to order Petitioner to pay all costs and attorney’s fee as sanctions against Petitioner pursuant to NYCRR 130-1.1. That motion was stayed by Magistrate Fasone together with whole due process and discovery. ARGUMENTS 10. Attorney licensed to practice law in the State of New York must be really bold and sure that he and his client will not be held in Contempt of Court for above mentioned violation of court order.

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11.

For all this frivolous motions designed to churn fees Mr. Levoritz asked the Court that Respondent pays his bill.

12.

Mr. Levoritz had to be sure that he will not be ordered to pay Respondent’s legal fees for such malicious litigation and frivolous motion practice as per 28 USC, § 1927 of JUDICIARY AND JUDICIAL PROCEDURE as well.

13. This “boldness” lets Respondent believe that Mr. Levoritz knew the outcome even before the decision was made by Magistrate Fasone - which is in favor of him and Petitioner.
14.

Mr. Levoritz, turns out, was right as he was awarded attorneys fees – reward for malicious prosecution and Fraud upon the Court.

15. Magistrate Fasone wrote in his Findings of Fact : ”Moreover, as the Court finds that respondent-father’s entire behavior in this proceedings has been to delay and to evade any final determination of his obligations on their merit, both as to paternity and as to child support, the undersigned authorizes reimbursement of petitioner-mother’s counsel fees incurred in the prosecution of this matter”.
16.

Section 455(a) of 28 U.S.C. provides as follows: Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned (emphasis added).

17.

The Supreme Court recently reaffirmed in Microsoft Corp. v. United States, 530 U. S. 1301, 1302 (2000) (REHNQUIST, C. J.) the standard for interpreting and applying this section thus: As this Court has stated, what matters under §455(a) “is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U. S. 540, 548 (1994). This inquiry is an objective one, made from the perspective of a reasonable observer who is

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informed of all the surrounding facts and circumstances. See ibid; In re Drexel Burnham Lambert Inc., 861 F. 2d 1307, 1309 (CA2 1988). 18. Respondent, Mr. Krichevsky, reasonably believes that Support Magistrate John Fasone is biased and prejudiced against him.
19.

Petitioner’s Financial Disclosure Affidavit is the only evidence that was produced by her attorney. This affidavit was mathematically erroneous and Respondent’s attorney pointed out this fact to Magistrate Fasone during hearing. Her debit and credit could not be reconciled, yet Magistrate Fasone managed to believe that her “testimony is credible” which is what he wrote in his Findings of Fact: “As does the Court with respect to her other testimony regarding her present financial circumstances – i.e. that she presently resides in her parent’s apartment rent-free and receives cash support from her sister in Germany”. This statement constitutes Fraud upon The Court with assistance of The Court itself as record shows that she owns this apartment and Respondent indicated during cross-examination that her sister is on public assistance in Germany. That is why Respondent’s attorney wanted her address in Germany so he could send her interrogatories to impeach Petitioner. That is why Magistrate Fasone prevented my attorney from getting this information.

20.

A judge is not a court; he is under law an officer of the court, and he must not engage in any action to deceive the court. Trans Aero Inc. v. LaFuerga Area Boliviana, 24 F.3d 457 (2nd Cir. 1994; Bulloch v. United States, 763 F.2d 1115, 1121 (10 Cir. 1985) (fraud upon the court exists “where judge has not performed his judicial duties”).

21. Mr. Levoritz was not concern with potential malpractice claim against him if after coaching Petitioner how to perpetrate Fraud upon The Court he loses this case.

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22. During this hearing Mr. Levoritz committed Fraud upon The Court himself by continuously falsifying facts, acting as expert witness and ejecting himself into testimony breaking “the unsworn witness rule”. 23. All his lies found their way into Findings of Fact over my attorney’s objections. 24. Such behavior of Mr. Levoritz would be equivalent of reasonable person coming to casino to play poker knowing in advance “which card he would get from the dealer” so he can play without fear of loosing. 25. Magistrate Fasone acted as an advocate for the Petitioner. This sham hearing lasted about six month. During this time Magistrate Fasone continuously protected Petitioner by obstructing discovery, preventing my attorney Daniel Singer from effective cross-examination of Petitioner by constant interruptions and inappropriate judgmental comments about my attorney’s professionalism. 26. Magistrate Fasone denied Respondent’s right to call Petitioner’s sister, Larissa Gaber, as witness after she was served with witness subpoena in Brooklyn, New York. 27. Magistrate Fasone knew that Petitioner will not survive her deposition by Respondent’s attorney and that is the reason he stayed discovery before hearing over objection of Respondent’s attorney. 28. Magistrate Fasone broke NYSBA Code of Judicial Conduct:
CANON 1 [§100.1]: A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Part 100 are to be construed and applied to further that objective. CANON 2 [§100.2]: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES.

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A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge CANON 3 [§100.3]: A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY. Judicial duties in general. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply. (B)(l) A judge shall be faithful to the law and maintain professional competence in it. (3) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers and of staff, court officials and others subject to the judge's direction and control. (4) A judge shall perform judicial duties without bias or prejudice against or in favor of any person. A judge in the performance of judicial duties shall not, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic status, and shall require staff, court officials and others subject to the judge's direction and control to refrain from such words or conduct. (5) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon age, race, creed, color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses, counsel or others. (6) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except: (7) A judge shall dispose of all judicial matters promptly, efficiently and fairly. (D) Disciplinary responsibilities. (2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action. (3) Acts of a judge in the discharge of disciplinary responsibilities are part of a judge's judicial duties. (E) Disqualification. A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (i) the judge has a personal bias or prejudice concerning a party or (ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;

29. Magistrate Fasone showed his bias and prejudice when he commented on the record that Respondent as paralegal earns more than he does.

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30.

Magistrate Fasone said nothing when Petitioner’s lawyer Mr. Levoritz made discriminatory statement while defaming Respondent and his employer on the record stating on Page 70 line 2-7 of October 8, 2009 hearing: “Your Honor, unfortunately, in certain communities it does happen where non-lawyers actually own law firms, and it’s a lawyer that’s used as a front”.

31. Magistrate Fasone broke Evidence Law by letting Mr. Levoritz admit into evidence stolen by Petitioner Respondent’s records. To add more insult to the injury those records were never exchanged. 32. However, stolen and destroyed by Petitioner, and later reproduced by Respondent’s employer 2006 W-2 form that showed $46,000 per year was not admitted into evidence due to double standards of Evidence Law employed by Magistrate Fasone.
33.

Petitioner told the court that she is not going to work in order to support parties’ 15 year old teenager child. So, to encourage Petitioner’s lifestyle Magistrate Fasone rewarded her with “maintenance” by increasing Respondent’s child support obligation from temporary $627 per month to $2045 without any new evidence that Respondent is actually capable to provide such money.

34. In total, Magistrate Fasone ordered Respondent to pay Petitioner attorney fees (reward for fraud upon the court and malicious prosecution), $31,599 in arrears (reward for fraud upon the court with assistance of the court officer John Fasone himself), and to pay about $700 per month for health insurance (reward to Petitioner for been in contempt of Support Magistrate Jennifer Castaldi order that Petitioner enroll parties child into Child Health Plus health plan).

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35. The court forgot to subtract $627 per month from arrears that Respondent was paying from August of 2009. 36. In total, the court has ordered the Respondent to pay to the Petitioner and her attorney the sum of about $52,000 plus about $2700 monthly. During the trial no evidence was presented by either the Respondent nor the Petitioner that the Respondent had that kind of money. In fact the records showed that the Respondent had $1700 in his checking account. 37. In it's order the Court makes no findings that the Respondent lied to the court about his cash assets or any statement as to how the Court determined that the Respondent had much more cash than either party alleged. If the Court is to let stand its Order then justice demands that the Court state how it came to the conclusion that the Respondent is able to comply with the Order of the Court. 38. The Respondent has made attempt to give the Court the opportunity to either fix it’s error of ordering the Respondent to do the impossible or to at least explain it’s reasoning in his Objection to Final order of Support sent to Judge Paula Hepner. She has refused to do so. 39. With a lack of evidence from either side indicating that the Respondent has this money, the Court is duty bound to make a finding as to how it concluded that the Respondent has the ability to pay this sum of money. If the Court refuses to make this finding then it can only be concluded by reasonable observer that it is the intention of the Court to deliberately drive the Respondent into financial ruin and bankruptcy, which is what happening right now with Respondent, and exactly what Petitioner promised Respondent to do. 40. At this point, Your Honor, it has clearly been pointed out to the Court in a manner that any reasonable observer can understand, that it's Decision is Impossible. That the Court has made

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obvious errors that is apparent to any reasonable observer. These obvious errors were brought to the attention of the Court and were deliberately ignored. In fact, if this errors is not corrected ASAP, Respondent will conclude that Magistrate Fasone is trying to deceive the Court and Respondent by stating in his Findings of Fact: “The factors used in calculating the basic payment for Adjusted Gross Income over $130,000 is/are: The financial resources of the custodial and non-custodial parent..”. As per record Respondent had $1700 in cash and non-custodial parent income of $52,000 per year as per Respondent’s 2009 W-2 form, and it is unclear where this $130,000 number comes from if Petitioners’ income is ZIRO. Magistrate Fasone continues: “The non-custodial parties’ pro rata share of basic child support obligation is neither unjust nor inappropriate”.

41.

In April 22, 2010 Respondent filed Petition to Modify his child support due to the fact

that he lost his job. The hearing was adjourned by Magistrate Fasone from May 18 to August 6 over Respondent’s Objection. Petitioner’s reason for such a long adjournment period was the argument that her attorney Mr. Levoritz has “celebrity status and is already booked for the summer”. In reality this is just another dirty lawyer’s trick to deny Respondent due process and to “milk more money” from Respondent’s unemployment benefits.
42.

However, he was immediately available after Respondent filed Petition for Custody and appeared on June 14, 2010, June 18, 2010, June 30, 2010, and now is scheduled to appear on July 28, 2010 in Part 52 of Family Court. More over, on June 30, 2010 he served Respondent with Summons for Violation of Court Order. Yes, no brainer, Respondent violated the very same order that is impossible to comply with. Respondent understands that Petitioner is framing Respondent to be incarcerated

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43.

The appearance is scheduled for July 13. This date is not incidental. Respondent believes and statistics proves that he will not get a fair hearing by Support Magistrate Fasone.

44. “Fraud upon the Court” makes void the orders and judgments of that court. The U.S. Supreme Court has consistently held that a void order is void at all times, does not have to be reversed or vacated by a judge, can not be made valid by any judge. The order is void ab initio. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920). Particularly when “a judge himself is a party to the fraud,” Cone v. Harris (Okl. 1924), 230 P. 721, 723. Windsor v. McVeigh (1876), 93 US 276, 23 Led 914, 918. 45. A Judge who stands in the way of justice and the law is acting outside of all judicial authority, lacks jurisdiction and thereby waives his rights to immunity from civil liability. The 14th Amendment guarantees the fundamental rights of People to Due Process and such rights require strict scrutiny of the Court. The Respondent therefore puts the Court on notice that the Respondent intends to defend his rights and to hold the Court liable for acts the Court takes against the Respondent that are done in the absence of judicial authority and jurisdiction. 46. Respondent also puts the court on notice that if the court refuses to recuse himself Respondent will have no choice but to file complaint with New York State Commission on Judicial Conduct and publish whole case on the World Wide Web. Wherefore, in light of the fact that Magistrate Fasone did not perform his duty as mandated by the Constitution and the Law Respondent respectfully moves the Court to Recuse himself and order a new trial. X________________________________

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MICHAEL KRICHEVSKY Sworn to before me this ___ day of July, 2010 _________________________ NOTARY PUBLIC

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