SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MICHAEL KRICHEVSKY

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Index No. 24714/10 Plaintiffs, -against-

YONATAN LEVORITZ, ESQ, YORAM NACHIMOVSKY, ESQ., ELENA SVENSON Defendants.

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MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF DEFENDANT, YONAT AN LEVORITZ, ESQ., FOR AN ORDER DISMISSING PLAINTIFF'S COMPLAINT AND IMPOSING SANCTIONS AGAINST PLAINTIFF

L' ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. Attorneys for Defendant Y onatan Levoritz, Esq. 1001 Franklin Avenue, 3rd Floor Garden City, New York 11530 Tel: (516) 294-8844 Fax: (516) 294-8202 File No.: 10 566 95568

Of Counsel: Noah Nunberg, Esq. Candice B. Ratner, Esq.

TABLE OF CONTENTS

TABLE OF AUTHORITIES INTRODUCTION RELEVANT PROCEDURAL AND FACTUAL BACKGROUND A. Allegations Regarding the Condominium Which Are Unrelated to Mr. Levoritz Family Court Action Allegation Involving Mr. Levoritz ; -

.iv 1 .4

5 6 7 8

B. C.

LEGAL ARGlJMENT POINT! PLAINTIFF'S PURPORTED AIDING AND ABETTING THE COMMISSION OF A TORT CAUSE OF ACTION MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION IN NEW YORK POINT II PLAINTIFF'S CONCERT OF ACTION CAUSE OF ACTION MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION IN NEW YORK POINT III PLAINTIFF'S CAUSE OF ACTION FOR SPOILIATION OF EVIDENCE MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION IN NEW YORK POINT IV PLAINTIFF'S MALICIOUS ABUSE OF PROCESS AND ABUSE OF PROCESS CAUSES OF ACTION MUST BE DISMISSED

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POINT V PLAINTIFF'S CAUSE OF ACTION FOR FRAUD MUST BE DISMISSED POINT VI PLAINTIFF'S SLANDER CAUSE OF ACTION MUST BE DISMISSED AS STATEMENTS MADE IN THE COURSE OF A LEGAL PROCEEDING ARE PRIVILIGED AND NOT ACTIONABLE a. b. c. POINT VII PLAINTIFF'S NINTH CAUSE OF ACTION FOR INJURIOUS FALSEHOOD MUST BE DISMISSED POINTvm PLAINTIFF'S CAUSE OF ACTION FOR EQUITABLE SUBROGATION MUST BE DISMISSED POINT IX PLAINTIFF HAS FAILED TO ESTABLISH A CLAIM FOR PRIMA FACIE TORT POINT X PLAINTIFF'S CAUSE OF ACTION FOR INVISIBLE HARM MUST BE DISMISSED AS IT IS NOT A VALID CAUSE OF ACTION POINT XI PLAINTIFF'S CAUSE OF ACTION FOR CONTRIBUTION MUST BE DISMISSED AS MR LEVORITZ OWES NO DUTY TO PLAINTIFF August 6,2009 Proceeding October 8, 2009 Proceeding January 6, 2010 Proceeding ,

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POINT XII PLAINTIFF HAS FAILED TO STATE A VIABLE CLAIM OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST MR. LEV ORITZ POINT XIII PLAINTIFF'S CAUSE OF ACTION FOR PUNITIVE DAMAGES MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION POINT XIV PLAINTIFF'S CAUSE OF ACTION FOR SLAVERY MUST BE DISMISSED , POINT XV SANCTIONS AND COSTS SHOULD BE IMPOSED AGAINST PLAINTIFF FOR COMMENCING AND MAINTAINING THIS FRIVILOUS ACTION CONCLUSION

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TABLE OF AUTHORITIES

Federal Cases
Drake v. Laboratory Corp. of America Holdings, 2007 WL 776818 (E.D.N.Y. March 13, 2007) Hulett v. Niagara Mohawk Power Corp., Civ. No. 92-7110, 2002 WL 3101983 (Sup. Ct. Onondaga Cty. Aug. I, 2002) Midgett v Beth Israel Medical Center, Civ. No. 401674/08, 2010 WL 4485767 (Sup. Ct. New York Cty. Oct. 29, 2010) Mortise v. United States, 102 F.3d 693, 696 (2d Cir, 1996) Risley v. Hawk, 918 F.Supp. 18,20 (D.C. Dist of Columbia 1996) 26

9

9 26 29

State Cases
Aglira v, Julien & Schlesinger, P.C., 214 A.D.2d 178, 631 N.Y.S.2d 816 (1st Dept. 1995) Andrews v. Steinberg, 122 Misc.2d 468,471 N.Y.S.2d 764 (Sup. Ct. New York Cty. 1983) .Benjamin Park v. YMCA of Greater New York Flushing, 17 A.D.3d 333, 791 N.Y.S.2d 848 (2d Dep't 2005) Bovsun v. Sanperio, 61 N.Y.2d 219 (1984) Cardo v. Bd. of Managers, 29 A.D.3d 930,817 N.Y.S.2d 315 (2d Dep't 2006) Casa De Meadows Inc. v. Zaman, 76 A.D.3d 917,908 N.Y.S.2d 628 (1st Dep't 2010) Conti v. Polizzotto, 243 A.D.2d 672, 663 N.Y.S.2d 293 (2d Dep't 1997) Curiano v. Suozzi, 63 N.Y.2d 113,480 N.Y.S.2d 466 (1984) De Rosa v. Stanley B. Michelman, P .c., 184 A.D.2d 490, 584 N.Y.S.2d 202 (2d Dep't 1992) 25

21, 22

27 26

23

11, 12, 13 25 10

26

IV

Del Vecchio v. Nelson, 300 A.D.2d 277, 278,571 N.Y.S.2d290, 291 (2d Dep't 2002) Galgano v. Ortiz, 287 AD.2d 688,732 N.Y.S.2d 77 (2d Dep't 2001) Gavrilov v. Slinim, 5 Misc.3d 1021(A), 2004 WL 2785181 (Sup. Ct. Kings Cty. Dec. 1, 2004) Giblin v. Murphy, 73 N.Y.2d 769, 772, 536 N.Y.S.2d 54 (I988) Glatzer v. Scappatura, 99 A.D.2d 505,470 N.y'S.2d 675 (2d Dep't 1984) Glendora v. Gallicano, 206 A.D.2d 456,615 N.Y.S.2d 45 (2d Dep't 1994) Green v. Leibowitz, 118 A.D.2d 756,500 N.Y.S.2d 146 (2d Dep't 1986) Guardian Mortgage Acceptance Corporation v. Bankers Trust, 259 A.D.2d 358,687 N.Y.S.2d 56 (1st Dep't 1999) Harrell v. Champlain Enters., 222 A.D.2d 876, 634 N.Y.S.2d 880 (3d Dep't 1995) Hillman v. Sinha, 77 A.D.3d 887, 2010 WL 4244360 (2d Dep't 2010) In re Kings County Tobacco Litigation, 187 Misc.Zd 409, 727 N.Y.S.2d 241 (Sup. Ct. Kings Cty, 2000) Lacher v. Engel, 33 A.D.3d 10,817 N.Y.S.2d 37 (1st Dep't 2006) Lancaster v. Town ofE. Hampton, 54 A.D.3d 906,864 N.Y.S.2d 537 (2d Dep't 2008) Lanzi v. Brooks, 54 A.D.2d 1057,388 N.Y.S.2d 946 (3d Dep't 1976) Lawrence v. Houston, 172 A.D.2d 923, 567 N.Y.S.2d 962 (3d Dep't 1991) Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425 (1969) Meisels v, Schon Family Foundation, 28 Misc.3d 1205(A), 2010 WL 2674049 (Sup. Ct. Kings Cty.June 28,2010) Moran v. Hurst, 32 A.D.3d 909,822 N.Y.S.2d 564 (2d Dep't 2006) Paisley v. Coin Device Corp., 5 A.D.3d 748, 773 N.Y.S.2d 582 (2d Dep't 2004) ~ :~~::

23 14

21 28 14, 15 26 28

28

28 9

9 16

23, 24 13 14 15

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8 25

27

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Peterec-Tolino v. Eisenberg, 23 Misc.3d 113(A), 2009 WL 1058544 (Civil Ct. New York Cty. Apr. 20, 2009) Pomerance v. McTiernan, 51 AD.3d 526,859 N.Y.S.2d 44 (1st Dep't 2008) Rink v. State of New York, 27 Misc.3d 1159, 901 N.Y.S.2d 480 (Ct. of Claims N.Y. 2010) Rosner v. Paley, 65 N.Y.2d 736, 492 N.Y.S. 2d 13 (1985) Rovello v. Klein, 304 AD.2d 638, 757 N.Y.S.2d 496 (2d Dep't 2003) Schauer v. Joyce, 54 N.Y.2d 1,444 N.Y.S.2d 564 (1981) Serxner v. Elgart, 196 Misc. 1053, 1056,94 N.Y.S.2d 731 (Sup. Ct. Kings Cty. 1949) Sexter & Warmflash, P.e. v. Margrabe, 38 AD.3d 163, 828 N.Y.S.2d 315 (1st Dep't 2007) Simaee v. Levi, 22 A.D.3d 559, 802 N.Y.S.2d 493 (2d Dep't 2005) Spinosa v. Weinstein, 168 AD.2d 32,571 N.Y.S.2d 747 (2d Dep't 1991) Walker v. Sheldon, 10 N.Y.2d 401,223 N.Y.S.2d 488 (1961) Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379 (1st Dep't 1992) Zhang v. Goff, 859 N.Y.S.2d 898, 2008 WL 465290 (Sup. Ct. Queens Cty. 2008) ;

15 16

22,23 25 25 25

10

15

23

28 27

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Federal Statutes
18 U.S.C. § 1583 18 U.S.C. § 1589(3) 18 U.S.C. § 1583 18 U.S.C. § 1589(3) 18 U.S.C.A. § 1589(a)(3)
VI

4,28

4,28 2,29 2 .• 29

U.S.C.A. § lS89(a)(3)

29

State Regulations
22N.Y.C.R.R. § 130-1.1 30 30 1

22 N.Y.C.R.R. § 130-1.1(c} N.Y.C.R.R. 130-1.1

Vll

INTRODUCTION This Memorandum of Law is submitted in support of the motion of Defendant, Yonatan Levoritz, Esq. ("Mr. Levoritz") made pursuant toCPLR R. 321 1(a)(7) and/or 3211 (a)(I) for an order dismissing the Complaint Krichevsky"), of the Plaintiff, Michael Krichevsky ("Plaintiff' or "Mr.

upon the grounds that the Complaint fails to state a cause of action and/or is In addition, this memorandum of law is submitted in

barred based on documentary evidence.

support of Mr. Levoritz' motion made pursuant to N.Y.C.R.R. 130-1.1 for an order imposing sanctions against Plaintiff for commencing and maintaining this frivolous action. This is case is nothing more than a disgruntled husband who is suing his ex-wife's former attorney who succeeded in obtaining a court order on behalf of his client to force Plaintiff to pay child support for his son and his ex-wife's legal fees. As discussed in the Affidavit of Yonatan Levoritz, Esq. ("Levoritz Affidavit" or "Levoritz Aff."), Mr. Levoritz represented Plaintiffs exwife, Co-Defendant, Elena Svenson ("Ms. Svenson"), in connection with paternity and child support proceedings, entitled Elena Svenson v. Michael Krichevsky, in the Family court of the State of New York, City of New York, Kings County, under Docket No: P-28901-08 ("Family Court Action"). On February 3, 2010, the Judge in the Family Court Action issued a decision

finding that Plaintiff was responsible for monthly child support payments in the amount of $2,045.00. See Order of Support at p. 4, annexed as Ex. "K" to the Levoritz Aff.' The Court found in its decision that Mr. Levoritz's "entire behavior in the[

J proceedings

had been to delay and to evade any final determination of his obligations on their merits, both as to paternity and as to child support" and as a result, ordered Plaintiff to reimburse Ms. Svenson for Mr. Levoritz' legal fees. See Findings of Fact at p. 3 annexed as Ex. "K to the Levoritz Aff.

Remarkably, after the Family Court issued that ruling, Plaintiff attempted to have the Judge

1

recused claiming, as Plaintiff has in this action, that the Judge was biased in favor of Ms. Svenson. See Ex. "L" to the Levoritz Aff. In addition, Plaintiff served but apparently did not See Ex. "M" to the

file a sanctions motion against Mr. Levoritz in the Family Court Action.

Levoritz Aff. As this Court can see, Plaintiff, who is disgruntled about being compelled to pay child support and Mr. Levoritz' legal fees, commenced this action in bad faith to harass the successful parties in the Family Court Action. As such, and as will be more fully discussed

below, we respectfully request that this Honorable Court impose sanctions against Plaintiff. In the Complaint Mr. Krichevsky concocts the following fifteen frivolous causes of action against My. Levoritz: 1) aiding and abetting the commission of a tort; 2) concert of action; 3) spoliation of evidence; 4) malicious abuse of process; 5) abuse of process; 6) fraud; 7) slander; 8) injurious falsehood; 9) equitable subrogation; 10) prima facie tort; 11) invisible harm caused by separate tortfeasors; 12) contribution; 13) negligent infliction of emotional distress; 14)

punitive damages; and 15) slavery under 18 U.S.c. § 1583 and involuntary servitude under 18 U.S.C. § 1589(3). As discussed below, the first, second, third and tenth causes of action foraiding and

abetting the commission of a tort, concert of action, spoliation of evidence and invisible harm are not independent causes of action in New York. With regard to the fifth and sixth causes of

action for malicious abuse of process and abuse of process, Plaintiff has failed to allege any of the elements required to establish same, particularly, that Mr. Levoritz used a regularly issued process with an intent to do harm without excuse or justification. Plaintiff's seventh cause of

action for fraud not only is not stated with particularity, but also the only statements referenced therein attributable to My. Levoritz were made in the course of the prosecution of the Family Court Action, and as such were absolutely privileged. Furthermore, the eighth cause of action

2

for slander is based upon statements made by Mr. Levoritz during proceedings in the Family Court Action held on August 6, 2009, October 8, 2009 and January 6,2010. The allegations in

connection with the August 6, 2009 proceedings are time barred and nevertheless, statements made during the course of those proceedings and the October 8, 2009 and January 5, 2010 proceedings are absolutely privileged. With regard to the ninth cause of action for injurious falsehood, plaintiff has not alleged special damages and he has not plead with particularity what actions were taken or false statements relationships. were made by Mr. Levoritz to interfere with Plaintiffs personal business

Moreover, as referenced above, any statements made during the course of the

judicial proceedings are absolutely privileged. The tenth cause of action for equitable subrogation is completely inapplicable to the case at hand as that cause of action is based upon the repayment of a debt. Plaintiff has not alleged, nor has he, paid a debt on behalf of Mr. Levoritz. With regard to eleventh cause of action for

prima facie tort, there are absolutely no allegations in the Complaint which support any claim that Mr. Levoritz had intent to inflict harm upon Plaintiff which resulted in any speci~l damages to Plaintiff without excuse/justification by an act that was unlawful. Mr. Levoritz' representation of Ms. Svenson was not done with the intent to injure Plaintiff, but rather, to zealously represent his client. With regard to the thirteenth cause of action for contribution, Mr. Levoritz owed no duty to Plaintiff in any capacity and therefore, Plaintiff has no right to contribution from Mr. Levoritz. With regard to the fourteenth cause of action for negligent infliction of emotional distress, the Complaint is devoid of any allegations that Plaintiff was in any danger to his physical safety as a

3

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result of any actions taken by Mr. Levoritz.

The fifteenth cause of action must be dismissed

because punitive damages cannot be maintained as a separate cause of action. Plaintiffs final absurd claim is asserted under 18 U.S.C. § 1583 and 18 U.S.C. § 1589(3)

against Mr. Levoritz, who somehow forced Plaintiff into involuntary servitude by successfully prosecuting his ex-wife's claim for child support against him. This frivolous claims not only should be dismissed out of hand but also sanctions should be imposed upon Plaintiff. Indeed,

this entire abusive and frivolous lawsuit should be dismissed with and severe sanctions should be imposed upon Plaintiff for abusing the processes of this Court.

RELEVANT PROCEDURAL

AND FACTUAL BACKGROUND

For the sake of brevity, the Court is respectfully referred to the Levoritz Affidavit for a recitation of the procedural and factual background of this matter. Plaintiff commenced the

instant lawsuit against Mr. Levoritz, Ms. Svenson, and Yoram Nachimovsky, Nachimovsky").

Esq. ("Mr.

Plaintiff alleges in the Complaint that Mr. Nachimovsky represented Ms.

Svenson in connection with actions commenced in Supreme Court, Kings County, Family Court, Kings County, Landlord Tenant Court, Kings County and Civil Court, Kings County. See Ex.

"E" at Ij[ 13-16. As discussed in the Levoritz Affidavit, Mr. Levoritz took over the Family Court Action from Mr. Nachimovsky on or about February 10, 2001. See Levoritz Aff, 1j[6 and Ex. "G" annexed thereto. In the section of the Complaint herein entitled "Facts and Unrebutted Allegations as Admission of Facts Common to All Causes of Action," which is comprised of approximately 46 paragraphs, Mr. Levoritz is only mentioned once. See Ex. "E" to the Levoritz Aff, 1j[1j[17-63. In that section, Plaintiff alleges that in January 2008, he and Ms. Svenson, an "unmarried" couple", decided to break apart their family. Id. at Ij[ 17. At that time, Plaintiff, Ms. Svenson and their 14 4

yr old son, David Svenson, lived at 4336 Manhattan Avenue, Brooklyn, New York. Id. at,-[ 1819. Plaintiff alleges that he supported the family through his employment at the law firm of Wittenstein A. and Associates, PC. Id. at,-[ 20. Allegations Regarding the Condominium Which Are Unrelated to Mr. Levoritz

In addition, Plaintiff alleges that he and Ms. Svenson owned a condominium located at 120 Oceana Drive West, Apt. 5D, Brooklyn, New York (the "Condominium") which later Id. at ,-[

became the subject of litigation in which Mr. Nachimovsky represented Ms. Svenson.

13-14 and 22. There are absolutely no allegations connecting Mr. Levoritz to matters concerning the Condominium. Instead, Plaintiff alleges that the Condominium was rented by Victoria Edelstein and Borsi Kotlyar on a month to month tenancy beginning in December 2006. Id. at,-[ 23. Plaintiff

alleges that in or about July 2008, he found an interested buyer for the Condominium but Ms. Edelstein and Mr. Kotlyar refused to let the prospective buyer see the apartment. Id. at ,-[30.

Plaintiff alleges that he hired Robert Rosenblatt, Esq. to commence an eviction action against Ms. Edelstein and Mr. Kotiyar. Id. at ,-[31. Plaintiff further alleges that in October-November (presumably, 2008), Mr. Rosenblatt discovered that Ms. Svenson had signed a lease with Ms. Edelstein and Mr. Kotlyar starting on October 1, 2008, for $2,850 per month. Id. at ,-[33. In

addition, Plaintiff alleges that Mr. Edelstein discovered that Mr. Nachimovsky represented Ms. Svenson and had prepared a stipulation to discontinue the eviction action against Ms. Edelstein and Mr. Kotlyar. Id. at ,-[,-[32,34. As a result, Plaintiff alleges that his attorney, Mr. Edelstein

commenced an action in Supreme Court, Kings County to force the sale of the Condominium. Id. at ,-[35.

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Plaintiff alleges that in October 2008 Ms. Svenson and their son, David Svenson, moved out of and "looted" their Manhattan Avenue apartment. !d. at ~~38, 40. Plaintiff claims that on October 27, 2008, Ms. Svenson filed a "false" Family Offense Petition against him. Id. at ~41. Plaintiff alleges that Ms. Svenson and their son went to Plaintiffs Plaintiffs work place to "harass"

employer and demand that Plaintiff be fired. !d. at ~42. Plaintiff alleges that he then

changed the locks at the Manhattan Avenue apartment and further that he abandoned the apartment due to his "fear of being arrested as a standard operating procedure by police enforcing [the] order of protection". Id. at ~~43, 45. B. Family Court Action

Plaintiff alleges that Ms. Nachimovsky "blackmailed" Plaintiff during a November 2008 Family Court appearance at which she tried to coerce him into a short sale of the Condominium to Ms. Edelstein and Mr. Kotlyar. Id. at ~50. In addition, Plaintiff alleges that Mr. Nachimovsky refused to mediate child support and gave Plaintiff an ultimatum of temporary child support of $2,500 per month. Id. at ~52. Plaintiff further alleges that Mr. Nachimovsky told Plaintiff that they will "reveal in open court all machinations of plaintiff and it will cost him much much more, implying criminal prosecution, than what they ask." Id. at ~51. As a result of these absurd claims, Plaintiff alleges that a demand was made to have Mr. Nachimovsky resign from the case due an alleged "conflict of interest and unprofessional

conduct." Id. at ~53. Plaintiff alleges that Mr. Nachimovsky told Mr. Rosenblatt that he will no longer represent Ms. Svenson, Ms. Edelstein or Mr. Kotlyar. Id. at ~54. However, Plaintiff

inconsistently alleges that Mr. Nachimovsky still represents Ms. Svenson, Ms. Edelstein and Mr. Kotlyar, through an alleged "puppeteer scheme." Id. at ~56.

6

C.

Allegation Involving Mr. Levorit;

The alleged "puppet scheme" imagined by Mr. Krichevsky includes Nicolas Ratush, Esq., an alleged employee of Mr. Nachimovsky, Mr. Levoritz and another attorney, Michael

Biancanello, Esq. Id. at '[57-63. Again, the only mention of Mr. Levoritz in this section of the Complaint is that he is a "lawyer-puppet, through which Nachimovsky represents Svenson by Id. at ~61. In a flourish of paranoia

continuous pattern of blackmail, fraud and extortion."

Plaintiff concludes this section of the Complaint by simply stating that Mr. Nachimovsky, Mr. Levoritz, Mr. Biancanello and Mr. Ratush, were "hired to act, acted and/or continue to act in [a] capacity of "contractual assassins" to harm Plaintiff. As .the Court can see from the allegations referenced above, this entire .lawsuit is frivolous, and the Complaint should be dismissed. There are absolutely no good faith allegations which provide support under the law or facts to maintain the fifteen causes of action alleged against Mr. Levoritz. The only fact that is readily apparent from the twisted allegations in the

Complaint is that Plaintiff is a disgruntled father who resents paying Court ordered child support to compound his contemptuous conduct; without
I

basis Mr. Krichevsky

has lashed out

maliciously against his ex-wife's former attorney, faith.

Mr. Levoritz, without basis and in utter bad

I As discussed in the Levoritz Affidavit, on November 10, 2010, Ms. Svenson and Mr. Levoritz executed a Substitution of Counsel and as such, Mr. Levoritz no longer represents Ms. Svenson in the Family Court, Brooklyn, New York proceedings against Plaintiff.

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Legal Argument POINT I PLAINTIFF'S PURPORTED AIDING AND ABETTING THE COMMISSION OF A TORT CAUSE OF ACTION MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION IN NEW YORK Plaintiffs purported first cause of action leveled at Mr. Levoritz that is denominated as

aiding and abetting the commission of a tort is not an independent cause of action in New York. Meisels v. Schon Family Foundation, 28 Misc.3d 1205(A), 2010 WL 2674049 (Sup. Ct. Kings Cty. June 28, 2010). In support of this claim, Plaintiff alleges that Mr. Levoritz "created, aided

and abetted Svenson in creation and filing of fraudulent perjuries and misleading instruments in child support proceeding in Brooklyn Family Court" which Plaintiff claims resulted in an unfair child support order against Plaintiff and the loss of Plaintiffs job, income, money, credit and failure to renovate his house located at 4221 Atlantic Avenue. Ex. "E" to the Levoritz Aff, ~~7376. Not only does Mr. Krichevsky make any specific allegations to facts to support this slanderous claim, but also the purported cause of action of aiding and abetting the commission of a tort is not an independent cause of action in New York and consequently must be dismissed POINT II PLAINTIFF'S CONCERT OF ACTION CAUSE OF ACTION MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION IN NEW YORK

.

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Plaintiffs second purported cause of action is denominated as concert of action as against all Defendants also must be dismissed. The only unfounded and broad allegation aimed at Mr.

Levoritz in support of this claim is that Mr. Levoritz allegedly engaged in "frivolous motion practice completely wearing out plaintiff financially." Id., ~88. Again, Plaintiff fails to

8

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reference what "frivolous motion practice" he is referring to and in any event, the so-called "concert of action" claim is not an independent cause of action in New York. In re Kings County Tobacco Litigation, 187 Misc.2d 409, 727 N.Y.S.2d 241 (Sup. Ct. Kings Cty. 2000)(internal citations omitted). Accordingly, the purported second cause of action must be dismissed. POINT III PLAINTIFF'S CAUSE OF ACTION FOR SPOILIATION OF EVIDENCE MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION IN NEW YORK Plaintiffs purported fourth cause of action is denominated as concealment or destruction of evidence (evidence spoliation) and is alleged in blunderbuss fashion against all Defendants. However, there is no cause of action in New York for spoliation of evidence and it must also be' dismissed. See Hillman v. Sinha, 77 A.D.3d 887, 2010 WL 4244360 (2d Dep't 2010); see also

Midgett v Beth Israel Medical Center, Civ. No. 401674/08, 2010 WL 4485767, at *6 (Sup. Ct. New York Cty. Oct. 29, 2010); see also Hulett v. Niagara Mohawk Power Corp., Civ. No. 927110, 2002 WL 3101983, at *7 (Sup. Ct. Onondaga Cty. Aug. 1, 2002)(internal omitted). In connection with this makeshift cause of action, Plaintiff alleges that during a child support hearing in the Family Court Action, Mr. Levoritz "knowingly and selectively presented favorable to Svenson" allegedly over the objection of Plaintiffs were "stolen from Plaintiff." attorney, which Plaintiff claims citations

Ex. "E" to the Levoritz Aff, ~96. Plaintiff goes on to claim that

Mr. Levoritz "demanded documents from plaintiff knowing that plaintiff is not in possession of them" and "blamed plaintiff for being evasive and uncooperative." With regard to Plaintiffs Id., ~~97-98. evidence which was

claim that Mr. Levoritz presented

favorable to Ms. Svenson, presenting such evidence is Mr. Levoritz' duty as an attorney; it is his

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job to zealously advocate for this client. With regard to Plaintiffs

claim regarding demanding

documents from Plaintiff, this is standard in any litigation and authorized pursuant to CPLR
,1,1,

3101.

If Plaintiff did not have the requested documents and/or objected to the demands, he

should have stated his objection in his response to the demand. Commencing a lawsuit against an attorney because you do not like that evidence was presented which was favorable to the other side and because Plaintiff was insulted by document demands, is ridiculous. As such, in addition to the fact that spoliation of evidence is not a cause of action in New York, the claims are
l-u

ridiculous on their face and should be dismissed. POINT IV PLAINTIFF'S MALICIOUS ABUSE OF PROCESS AND ABUSE. OF PROCESS CAUSES OF ACTION MUST BE DISMISSED Plaintiffs fifth cause of action is for malicious abuse of process and Plaintiffs sixth

cause of action is for abuse of process.

Malicious abuse of process and abuse of process are

essentially the same causes of action. "The gist of an action for 'malicious abuse of pro cess , lies in improper use of process after it is issued, and it must be shown that regularly issued process was perverted to the accomplishment of an improper purpose." Serxner v. Elgart;"'196 Misc.

1053, 1056, 94 N.Y.S.2d 731, 733 (Sup. Ct. Kings Cty. 1949). However, "the proper use of legal process, even from a bad motive and to satisfy malice, is not actionable." Id; see also
i,\:._

Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 (1984)("a malicious motive alone, however, does not give rise to a cause of action for abuse of process.") There are three elements which must be satisfied in an abuse of process claim: (1) regularly issued process, either civil or criminal, (2) an intent to harm without excuse or justification, objective. and (3) uses of process in a perverted manner in order to obtain a collateral Id.; see also Zhang v. Goff, 859 N.Y.S.2d 898, 2008 WL 465290 (Sup. Ct. Queens 10

·..,-

Cty. 2008); see also Casa De Meadows Inc. v. Zaman, 76 A.D.3d 917,917,908

N.Y.S.2d 628,

632 (lst Dep't 2010). Critically, Plaintiff has not plead facts capable of supporting ~y of these elements with respect to Mr. Levoritz. With respect to the first element, Plaintiff fails to plead that Mr. Levoritz "employed regularly issued legal process to compel performance or forbearance of some act." The only

allegations referenced in connection with the abuse of process causes of action against Mr. Levoritz is that in or around AprilfMay 2010, Mr. Levoritz made an application on behalf of Ms. Svenson for an adjournment of a hearing allegedly in connection with Plaintiffs application to

modify his child support obligation in the Family Court Action. See Ex. "E" to the Levoritz Aff, ~~109-111. Plaintiff claims that Mr. Levoritz' reasoning for the adjournment was because he Plaintiff claims that the

has "celebrity status and is already booked for the summer." Id. at ~lli.

request for an adjournment was a "trick" to deny Plaintiff due process. Id. at ~112. This claim is completely ridiculous. Although an application for an adjournment is not

uncommon practice, it is not "regularly issued process" necessary to support the claim. It should be noted that if the judge thought the application for an adjournment was a "trick" he or she would not have granted the adjournment. Plaintiff also alleges that the "defendants" engaged in

frivolous motion practice, and used "delay and "adjournment tactics to harass and wear out plaintiff financially." Id. at ~117-118. There are no specific claims referenced with::'-regardto

Mr. Levoritz, and Plaintiff does not identify what frivolous motion practice he is referring to. As such, Plaintiffs allegations do not fall under the category of "regularly issued process."

.

With regard to the second element, Plaintiff has not alleged or otherwise demonstrated that Mr. Levoritz as his adversary's counsel in litigation had intent to do harm to Plaintiff. Of

course, Mr. Levoritz was duty bound to zealously advocate for his client against Mr. Krichevsky.

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~:;: ..

Plaintiffs

attempt to turn that duty into a cause of action against Mr. Levoritz simply because With respect to the third element,
..::.~

Mr. Levoritz succeeded on behalf of his client is improper.

there is no allegation that Mr. Levoritz sought to obtain some collateral advantage over Plaintiff. Again, the request for an adjournment does not demonstrate any wrongdoing and if Plaintiff had a problem he should have dealt with it with the Family Court. In support of this cause of action, Plaintiff also alleges that Mr. Levoritz failed to answer Plaintiffs modification and custody petitions and served Plaintiff with a petition to hold him in Id., ~113. These claims

contempt for not applying his court ordered child support obligations. have nothing to do with an abuse of process cause of action.

Regardless, this is not the

appropriate venue for Plaintiff to raise these claims. Once again, these issues should.have been raised before the judge in the Family Court Action. Accordingly, we respectfully request that Plaintiffs purported fifth and sixth causes of

action for malicious abuse of process and abuse of process be dismissed as against Mr. Levoritz. POINT V PLAINTIFF'S Plaintiffs CAUSE OF ACTION FOR FRAUD MUST BE DISMISSED
,

~
"

seventh cause of action for fraud is asserted against all Defendants.

Plaintiff

alleges the following against all "Defendants": a. During litigation induced by the "defendants", perjurious documents were created and filed in courts under penalty of perjury. During litigation induced by "defendants", perjurious statements were made under penalty of perjury in courts. "Defendants" obstructed justice every time they had an opportunity to do so.

b.

c.

Id., ~ 121-122, 124.

12

Mr. Levoritz is faulted for seeking arrears in payments of child support on behalf of his client in the Family Court Proceeding because of certain alleged positions taken by another
. ,-~.

attorney in connection with a proceeding in Supreme Court before Hon. Bert Bunyan. Plaintiff claims that Mr. Levoritz did not have a right to seek child support in the Family Court proceeding because and that Ms. Svenson "stipulated with Han. Bert Bunyan that she will pay $7,000 to plaintiff, which she has failed to do."

Id., ~127. However, Mr. Krichevsky fails to

demonstrate how these positions are inconsistent or even that Mr. Levoritz was aware of anything that was going in the Supreme Court action in which he was not involved. Certainly, Mr. Krichevsky had the opportunity to raise any defense such as payment that he may have had before the Family Court to contest any alleged arrears in child support. His failure to do. so there, and his attempt to place the onus of his apparent neglect to do so on Mr. Levoritz in this proceeding, after there was a finding that Plaintiff was in arrears, is improper. Nor are the basic elements of fraud, as discussed below, set forth against Mr. Levoritz to such a fraud claim. Indeed, the seventh cause of action for fraud must be dismissed because the allegations fail to satisfy the strict pleading requirements for a fraud cause of action established by CPLR 3016(b). CPLR 3016(b) requires as follows: Where a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail. CPLR 3016(b). To plead a prima facie case of fraud, the plaintiff must allege (1) representation of a material existing fact, (2) falsity, (3) scienter, (4) deception and (5) injury. Lanzi v. Brooks, 54 A.D.2d 1057,388 N.Y.S.2d 946,948 (3d Dep't 1976).
.

13

It is well settled that it is not sufficient to merely state the basic elements of a fraud cause of action, but rather, a claim of fraud must be asserted in detail, and conc1usory al1eg~~ionswill .not suffice. Galgano v. Ortiz, 287 A.D.2d 688, 732 N.Y.S.2d 77 (2d Dep't 2001); Lawrence v. Houston, 172 A.D.2d 923, 567 N.Y.S.2d 962 (3d Dep't 1991). "Mere allegations, in conclusory form, that the moving defendants participated in or assisted in the commission of a fraud are insufficient to state a cause of action." Glatzer v. Scappatura, 99 A.D.2d 505, 470 N.Y.S.2d 675 (2d Dep't 1984). In the instant action, Plaintiff broadly asserts that the "Defendants", "during litigation" allegedly created and filed "perjurious documents" with the court. Plaintiff, however, does not identify what "perjurious documents" were filed. Plaintiff does not articulate with-specificity any material and false representation that was allegedly made by Mr. Levoritz. Viewed against the standard set forth in the above cited case law, Plaintiff has failed to state a cause of action in fraud against Mr. Levoritz. In order to state a valid cause of action

sounding in fraud, Plaintiffs are required to allege "representation of a material existing fact, falsity, scienter, deception and injury." In the instant action, however, Plaintiff does not specifically allege that the Mr. Levoritz made any representation to him. Plaintiff simply makes the overbroad assertion that the

"Defendants" made representations to in court documents and "obstructed justice every'time they had an opportunity to do". See Ex. "E" to the Levoritz Aff, '11121-122,124. The very fact that Plaintiff has attributed the identical allegedly fraudulent statements and the same exact conduct to each of the Defendants in this action is evidence of the fact that Plaintiff has not particularized the elements of fraud as required by statute and case law. CPLR 3016(b) and the case law cited above do not allow for a fraud cause of action to be maintained

14

,·U.

where there is nothing more than "bare bones" statements of the elements of a fraud cause of action and where Plaintiffs have not set forth any factual allegations stated in detaiL As such, it is respectfully submitted that Plaintiffs Levoritz. POINT VI PLAINTIFF'S SLANDER CAUSE OF ACTION MUST BE DISMISSED AS STATEMENTS MADE IN THE COURSE OF A LEGAL PROCEEDING ARE PRIVILEGED AND NOT ACTIONABLE
- ii

fraud cause of action be dismissed as against Mr.

Plaintiffs Plaintiffs

eighth cause of action is for slander and is alleged only against Mr. Levoritz.

slander cause of action is based upon statements made by Mr. Levoritz during legal

proceedings in the Family Court Action on August 6, 2009, October 8, 2009 and January 6, 2010. Id., ~ 135-137. First, Plaintiff s claims in connection with the August 6, 2009 proceeding is barred by the one year statute of limitations. See CPLR 215(3). Plaintiff commenced this action by the filing of a Summons with Notice on October 6, 2010. August 6,2009 proceeding are time barred. Second, it is well settled that a "statement made in the course of judicial proceedings is absolutely privileged, regardless of the defendant's purpose or motive in making the statement." Peterec- Totino v. Eisenberg, 23 Misc.3d 113(A), 2009 WL 1058544, at *6 (Civil Ct. New York Cty. Apr. 20, 2009); see also Martirano v. Frost, 25 N.Y.2d 505, 506, 307 N.Y.S.2d 425, 427 (1969). The privilege extends to the judge, jurors, counsel, witnesses and the parties to the Sexter & Warmflash, P.e. v. Margrabe, 38 A.D.3d 163, 828 N.Y.S.2d 315 (1st The "rule rests on the policy that counsel should be able to speak with that free As such any claims in connection with the

proceeding. Dep't 2007).

and open mind which the administration of justice demands' without the constant .fl·ar of libel

15

suits." Pomerance v. McTiernan, 51 AD.3d 526, 859 N.Y.S.2d 44 (1st Dep't 2008); see also Lacher v. Engel, 33 AD.3d 10, 11,817 N.y'S.2d 37, 40 (1st Dep't 2006). Furthermore, "a statement will be protected as privileged 'if it is at all pertinent to the litigation. ", Id. (emphasis in original). "In other words, the statement must be so outrageously

out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame." Martirano, 25 N.Y.2d at 508. Here, the statements made in connection with the legal proceedings held on August 6, 2009, October 8,2009 and January 6, 2010 are all privileged and cannot possibly sustain a slander claim against Mr. Levoritz, a. August 6, 2009 Proceeding

Not only are the claims asserted in connection with the August 6, 2009 proceeding time barred, the claims also are not even actionable. Plaintiff alleges that the following statements

made by Mr. Levoritz on the record before Magistrate Fascone are malicious and slanderous allegations about Plaintiff: Mr. Levoritz: Your Honor, with all due respect this gentleman has complete control over this income ... he works almost as a partner in a law firm, Your t:1bnor. Mr. Levoritz: I am going to explain it. He brings in clients from the law firm and received a percentage of the recovery on personal injury matters. Mr. Levoritz: If you look at his tax return his tax return reflects the fact that he actually owned a company and he put everything through his company and not through him. Mr. Levoritz: Because it's not necessarily reported on a W-2, Your Honor. No, in the past some of it has been reported on W-2, some of it has gone through the company. He shelters it in different. .. The Court: His income is diverted, hut that doesn't mean his employer is giving him extra income. Unless you're gonna tell me he's in cahoots with these people ... """

16

Mr. Levoritz: that's exactly what I'm saying, Your Honor. pseudo- partner in this particular business.

As I said before, he's a

See Ex. "E" to the Levoritz Aff, ~135 and Ex. "H" at p. 16, In. 25, p. 17, In. 1-6, In. 9-12, p. 36, In. 7-11, p. 36, In. 17-18, p. 37, In. 2-10. The aforementioned statements made by Mr. Levoritz were made in connection with the proceeding before the Honorable John M. Fasone and, therefore, are absolutely privileged. In addition, despite Plaintiffs statement made by Mr. Levoritz. Plaintiff: "while not an 'illegal' partner in the law firm for which he works, apparently does have more than normal employer-employee relationship with his firm. Such fact is evidenced that the firms' :. bookkeeper, by his own admission, generated a 2009 W-2 Wage and Tax Form for his use in these proceedings at his direction and outside of the normal course of the firm's business." See Levoritz Aff at Ex. "K", Findings of Fact at p. 3. As such, Mr. Levoritz clearly had a reasonable basis to make this statement to the court. If not, the court would not have found that Plaintiff had "more than normal employer-employee relationship with his firm." Id. h. October 8,2009 Proceeding allegations, there was absolutely nothing wrong with the In fact, the Judge in the Family Court Action stated that

With regard to the proceeding on October 8, 2009, Plaintiff alleges that the following "malicious and slanderous" statements were made by Mr. Levoritz during the cross-examination of Plaintiff in the child support hearing which began on August 6, 2009. Mr. Levoritz: Taxes for 2006, you have not produced them for this court, have you, yes or no? No.

Plaintiff:

Mr. Levoritz: Taxes for 2007, you haven't produced them for this court, yes cr.no?

17

Plaintiff: Mr. Levoritz:

No. " .isn't' it true that you have no time to rest because you're actually an owner of Witten stein and Associates, yes or no. He is an owner of a law firm, counsel? ... unfortunately, in certain communicates it does happen where nonlawyers actually own law firms and there's a lawyer that's used as a front.

The Court: Mr. Levoritz:

See Ex. "I" at p. 68-69 and Ex "E", ,136 annexed to the Levoritz Aff. Once more, these quoted statements were alleged to be made by Mr. Levoritz in connection with the proceeding before the Honorable John M. Fasone and, therefore, they are absolutely privileged. The questions Mr. Levoritz asked Plaintiff regarding Plaintiffs ownership in the law firm were posed to determine why he had not produced his tax returns for 2006 and 2007. The questions were clearly pertinent to the litigation and entirely appropriate. c. January 6, 2010 Proceeding

With regard to the proceeding on January 6, 2010, Plaintiff alleges that the following "malicious and slanderous" statements were made by Mr. Levoritz: Mr. Levoritz: His Affidavit of Net Worth has an excess of $200,000 in annualexpenses . . If he claims he made $56,000, he spent roughly four times thai amount, not including what he spent on constructing the two family house ... See Ex. "J" at p. 17, In. 15-19 and Ex "E",

1137 annexed

to the Levoritz Aff.

Plaintiff fails to apprise this Honorable Court that in response to Mr. Levoritz' statement, the Court stated the following: Court: Well, that's an argument that's more appropriate made, counsel, during cross. How do you know how much I spend? Sir. Can you stop that?

.~
.

Plaintiff: Court:

See Ex. "J" at p. 17, In. 20-24 annexed to the Levoritz Aff. 18

The Court found nothing wrong with Mr. Levoritz' statement, and did not make any adverse inference predicated thereon against Mr. Levoritz. Instead, as can be seen from the

excerpt, Judge Fasone simply advised Mr. Levoritz that his line of questioning would be more appropriate during cross-examination. Mr. Levoritz was trying to determine why Plaintiffs

Affidavit of Net Worth stated that he has expenses of $200,000 when he claims he only made $56,000. Mr. Levoritz was merely zealously advocating for his client. The statement made

during the proceeding was completely "pertinent" to the proceeding. Plaintiff includes other allegations in support of his slander cause of action, such as, the fact that Mr. Levoritz did not put Ms. Svenson on the stand to be cross-examined by Plaintiffs attorney, refused to depose Plaintiff, and Mr. Levoritz made "it look as if ha[ d] firsthand knowledge of facts." Ex. "E" to the Levoritz Aff, ~ 138-148. Id., ~150. He goes on to state that Mr.

Levoritz "achieved his goal as assassin". Plaintiffs

These allegations provide no support to

slander cause of action. Mr. Levoritz' strategy during the litigation is not actionable

by his adversary. The claims made here only support the fact that Plaintiff was simply unhappy that those strategies succeeded and do not support any claims against Mr. Levoritz.: As can be seen from these frivolous allegations , the Plaintiff is simply raising any and all baseless accusations he can against Mr. Levoritz to support his frivolous slander cause of action. Plaintiff even has the audacity to accuse Judge Fasone of "retum[ing] a favor" to Mr. Levoritz by awarding Ms. Svenson legal fees against Plaintiff. Id., ~147. Plaintiff states in his complaint that "as a result of LEV ORITZ 'pitching' this (sic.) slanderous accusations to Fasone, Fasone 'hit a home run' by ordering plaintiff to pay defendant maximum amount of money he could possibly come up with." Id., 'U146. Unlike the claims Plaintiff references against Mr.

Levoritz, the claims against Judge Fascone and Mr. Levoritz, are not made in connection with a

19

judicial proceeding and as such, Plaintiff should be more cautious with his own false accusations so that he is not the subject of a slander lawsuit. Due to the fact that the claims in connection with the August 6,2009 are time barred and the statements made during the August 6, 2009, October 8, 2009 and January 6, 2010 proceedings are absolutely privileged, it is respectfully requested that Plaintiff's cause of action for slander against Mr. Levoritz be dismissed. POINT VII
I·~.I,

PLAINTIFF'S NINTH CAUSE OF ACTION FOR INJURIOUS FALSEHOOD MUST BE DISMISSED Plaintiff's purported ninth cause of action is for injurious falsehood and is alleged In support of this claim, Plaintiff alleges that he had an

generally against all Defendants.

employment contract for many years with a law firm, Wittenstein & Associates, PC. Id., ~153. Plaintiff further alleges that he had a business contract with Leon Construction to renovate and finance his project 4221 Atlantic Avenue. Id. at 154. Plaintiff claims that the Defendants knew about the existence of Plaintiff's relationship with Wittenstein & Associates, PC and Leon
,

Construction and due to their "intentional and unjustifiable interference with Plaintiff's personal business [in connection with the] child support proceeding [they] brought negative results" assumingly, to Plaintiff's relationship with the two companies. Jd., ~ 156. Plaintiff claims that due to Defendants "slanderous utterance and publication of false statements" his reputation has been damaged in the eyes of Witten stein & Associates, PC and Leon Construction. Id., ~157. An "action for injurious falsehood lies when one publishes false and disparaging

statements about another's property under circumstances which would lead a reasonable person to anticipate that damage might flow therefrom." Gavrilov v. Slinim, 5 Misc.3d 1021(A), 2004

20

WL 2785181 (Sup. Ct. Kings Cty. Dec. 1,2004).

Special damages are a necessary element of an

action for injurious falsehood and must be plead with particularity. First, as referenced above, any statements and/or documentation provided by Mr.

Levoritz in connection with proceedings in the Family Court Action are absolutely privileged. See Andrews v. Steinberg, 122 Misc.2d 468, 471 N.Y.S.2d 764 (Sup. Ct. New York Cty.

1983)(dismissing injurious falsehood cause of action as the alleged false statements were made during the course of a judicial proceeding and therefore privileged). In addition, Plaintiff has not

pled with particularity what actions or false statements were taken by Mr. Levoritz to interfere with Plaintiffs special damages. Plaintiff also claims that Witten stein & Associates, PC and Leon Construction were harassed and threatened by the Defendants by having to be involved in the underlying litigation and induced to refrain from continuing a relationship with Plaintiff. Id., -,r158-159. Despite personal business relationships. Moreover, Plaintiff has failed to plead any

Plaintiffs claim, he does not have standing to bring any action against the Defendants on behalf of Wittenstein & Associates, PC or Leon Construction. If Wittenstein & Associares, PC and

Leon Construction feel that they were in fact harassed and/or threatened by the Defendants, although no evidence is cited supporting same, they should have commenced an action against Defendants. Accordingly, the it is respectfully submitted that the ninth cause of action must be dismissed.

21

POINT VIII
PLAINTIFF'S CAUSE OF ACTION FOR EQUITABLE SUBROGRATION MUST BE DISMISSED Plaintiffs tenth cause of action is for equitable subrogation and is alleged generally Plaintiff alleges that the Defendants were enriched "during this

against all Defendants.

litigation," although, he does not state what litigation he is referring to. Id., ~163. Plaintiff goes on to state that due to the Defendants "extort[ion]" he is required to pay child support and had to Id., ~164. Blaming the

retain lawyers in connection with the child support proceedings.

Defendants because Plaintiff is unhappy with the fact that the Court ordered him to pay child support is preposterous. Furthermore, a cause of action for equitable subrogation is based upon the premise that a

person who pays a debt that is owed by another should be allowed the opportunity to be reimbursed in full by the one primarily responsible for the losses. Rink v. State of New York, 27

Misc.3d 1159,901 N.Y.S.2d 480 (Ct. of Claims N.Y. 2010). This cause of action is inapplicable to Mr. Levoritz. Plaintiff makes no claims that he paid any debts of Mr. Levoritz.Due
f. .. -.

to the

fact that Plaintiff has not alleged any allegations which support a cause of action for equitable subrogation, we respectfully request that this claim also be dismissed.

POINT IX
PLAINTIFF HAS FAILED TO ESTABLISH A CLAIM FOR PRIMA FACIE TORT Plaintiffs purported eleventh cause of action is for prima facie tort and again, is alleged Plaintiff alleges that the act and/or series of acts were See Ex. "E" to
l .

generally against all Defendants.

malicious and unlawful and were made without legitimate excuse of justification.

the Levoritz Aft, ~~ 167-168. He claims that as a direct result of "these acts," he suffered and

22

.:.,:.

continues to suffer great financial loss and personal injuries triggering an award of special damages. Id., ~169. Plaintiff does not identify what "acts" he is referring to and any of the

actions alleged against Mr. Levoritz in the other causes of action have already been addressed and as discussed herein, the claims have no merit. The elements of a prima facie tort cause of action are (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawfuL See Cardo v. Bd. of Managers, 29 A.D.3d 930,931, 817

N.Y.S.2d 315, 317 (2d Dep't 2006); Del Vecchio v. Nelson, 300 A.D.2d 277,278, 571 N.Y.S.2d 290, 291 (2d Dep't 2002). Disinterested malevolence must be the sole motive for the allegedly unlawful act. See Lancaster v. Town of E. Hampton, 54 A.D.3d 906, 908, 864 N.Y.S.2d 537, 539 (2d Dep't 2008); Simaee v. Levi, 22 A.D.3d 559, 562-63, 802 N.Y.S.2d 493,497 (2d Dep't 2005). Furthermore, a cause of action for prima facie tort is not meant "to provide a 'catch all' alternative for every cause of action which cannot stand on its legs." Lancaster, 54 A.D.3d at 908,864 N.Y.S.2d at 539 (quotations omitted).
~ .,"

Notably, in this case, Plaintiff does not allege that Mr. Levoritz acted with "disinterested malevolence." Mr. Levoritz' representation of Ms. Svenson was not done with the intent to

injure Plaintiff, but rather, to protect and zealously represent his client in the Family Court Action, as was his obligation as Ms. Svenson's counseL In light of the fact that Plaintiff cannot prove that Mr. Levoritz acted solely with the intent to injure Plaintiff without excuse or justification, this cause of action must be dismissed.

23

POINT X PLAINTIFF'S CAUSE OF ACTION FOR INVISIBLE HARM MUST BE DISMISSED AS IT IS NOT A VALID CAUSE OF ACTION Plaintiffs purported twelfth cause of action for invisible harm must be dismissed as it is not a valid cause of action in New York. In support ofthis claim, Plaintiff alleges that: "some or all of the acts by defendants could be independent and/or separate from each other. However, when they are combined together, caused and/or produced single and/or successive and/or subsequent injuries which is impossible to distinguish from each other and/or determine who caused more damage. Such injuries are impossible to apportion amounts all of the tortfeasors. Therefore all defendants [are] jointly and severally liable ... " See Ex. "E" to the Levoritz Aff, ~~171-174. Due to the fact that "invisible harm" is not a valid cause of action, we respectfully request that it be dismissed as against Mr. Levoritz. POINT XI PLAINTIFF'S DISMISSED Plaintiffs Defendants. CAUSE OF ACTION FOR CONTRIBUTION MUST BE AS MR. LEVORITZ OWES NO DUTY TO PLAINTIFF
,,
I~' .

thirteenth cause of action is for contribution

and is alleged against all

Plaintiff claims that Mr. Levoritz committed legal malpractice in connection with and as a result of same, Plaintiff is claiming he is entitled to

the Family Court Action

contribution from Mr. Levoritz because Plaintiff cannot pay his court ordered child support obligation. Id., ~176-177. First, Mr. Levoritz did not represent Plaintiff in the Family Court wife, Ms. Svenson, and therefore, Plaintiff has no grounds to

Action, he represented Plaintiffs

assert a claim for legal malpractice or contribution for same. A party may not maintain an action against an attorney with whom he or she is not in privity, "absent fraud, collusion, malicious acts or other special circumstances, an attorney is not Liable to third parties, not in privity, for hann

24

caused by professional negligence." Moran v. Hurst, 32 AD.3d 909, 822 N.Y.S.2d 564 (2d Dep't 2006) citing Rovello v. Klein, 304 AD.2d 638, 757 N.Y.S.2d 496 (2d Dep't 2003), citing Conti v. Polizzotto, 243 A.D.2d 672,663 N.Y.S.2d 293 (2d Dep't 1997). Since Mr. Levoritz did not represent Plaintiff, no privity exists and Plaintiffs claim for contribution must be dismissed. Second, dismissal of Plaintiffs cause of action seeking contribution is warranted since

Mr. Levoritz did not owe a duty to Plaintiff, did not breach any duty owed to Plaintiff, and did not contribute to or aggravate Plaintiffs damages. In Rosner v. Paley, 65 N.Y.2ti736, 492

N.Y.S. 2d 13 (1985), the Court of Appeals addressed the issue presented here, in the specific context of an attorney's liability, and concluded that "[i]n determining whether a valid thirdparty claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff s damages." [citations omitted]; See also Aglira v. Julien & Schlesinger, PC, 214 AD.2d 178, Schauer v. Joyce, 54 N.Y.2d 1, 444 N.Y.S.2d 564 (1981),

631 N.Y.S.2d 816(1st DepU995);

holding that the "relevant question under CPLR 1401 and Dole is not whether [the third-party defendant attorney] owed a duty to [the defendant/third-party plaintiff attorney], but whether

[they] each owed a duty to [plaintiff], and by breaching their respective duties contributed to her ultimate injuries." 54 N.Y. at 5. In this case, Mr. Levoritz owed no duty to the Plaintiff in any capacity. In fact, at certain points during the child support proceeding, Plaintiff had counseL See Levoritz Aff, ~7. Mr. Levoritz did not owe any duty to the Plaintiff, as a matter of law, Plaintiffs contribution must fall. Since

claim for

25

POINT XII PLAINTIFF HAS FAILED TO STATE A VIABLE CLAIM OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST MR. LEVORITZ Plaintiffs purported fourteenth cause of action is for negligent infliction of emotional Plaintiff claims that the Defendants owed him a

distress and is alleged against all Defendants.

duty "to be honest" and ethical and they breached that duty. See Ex. "E" to the Levoritz Aff, ~~182-183. First, Mr. Levoritz, as discussed above, owed no duty to Plaintiff. Plaintiff alleges

that as a result of Defendants' alleged negligence, carelessness and recklessness, he was caused to suffer personal injuries to mind and body including physical pain and mental anguish. ~184. A plaintiff may recover for a purely emotional injury under the 'bystander' theory when: (1)[he] is threatened with physical harm as a result of defendant's negligence; and (2) Jd.,

consequently [he] suffers emotional injury from witnessing the death or serious bodily injury of a member of (his] immediate family. Drake v. Laboratory Corp. of America Holdings, 2007 WL 776818 (E.D.N.Y. March l3, 2007). Additionally, a plaintiff may recover under the ':dIrect duty' if [he] suffers an emotional injury from defendant's breach of a duty which unreasonably endangered (his] own physical safety. Jd.; See also Mortise v. United States, 102 F.3d 693,696 (2d CiT. 1996) ("In order to support a claim under the direct duty theory of negligent infliction of emotional distress, the plaintiff must prove he suffers from an emotional injury as a result of defendant's breach of a duty which unreasonably endangered his own physical safety") (citing Bovsun v. Sanperio, 61 N.Y.2d 219, 230-31 (1984»; Glendora v. Gallicano, 206 A.D.2d 456, 615 N.Y.S.2d 45 (2d Dep't 1994); De Rosa v. Stanley B. Michelman, 584 N.Y.S.2d 202 (2d Dep't 1992).

r.c.,

184 A.D.2d 490,491,

26

The Complaint is devoid of any allegations that Plaintiff was in any danger to his physical safety as a result of any actions by Mr. Levoritz. Plaintiff merely alleges in conclusory fashion that the "Defendants" were somehow negligent, careless and reckless. See Ex. "E" to the Levoritz Aff, ~184. Such allegations against Mr. Levoritz do not constitute a cognizable claim for negligent infliction of emotional distress under New York law, and consequently, purported fourteenth cause of action should be dismissed. POINT XIII PLAINTIFF'S CAUSE OF ACTION FOR PUNITIVE DAMAGES MUST BE DISMISSED AS IT IS NOT AN INDEPENDENT CAUSE OF ACTION Plaintiffs defendants. purported fifteenth cause of action is for punitive damages against all the

First, a separate cause of action for punitive damages may not be maintained.

Benjamin Park v. YMCA of Greater New York Flushing, 17 AD.3d 333, 791 N.Y.S.2d 848 (2d Dep't2005); Paisley v. Coin Device Corp., 5 AD.3d 748, 773 N.Y.S.2d 582 (2d Dep't 2004). Second, based upon the facts alleged, punitive damages are hardly applicable in this matter. In
;"_;;.-.

support of this claim, Plaintiff alleges that the acts of all Defendants "were wanton, reckless and malicious," and, to protect "public and society from future acts of the defendants, they must be punished to prevent similar acts." Plaintiff references no acts which support this claim in

connection with this case of action and moreover, Plaintiffhas referenced no acts of Mr. Levoritz throughout the Complaint which rise to wanton, reckless or malicious behavior. It is well settled that for punitive damages to be awarded, the defendant's conduct must be so outrageous as to evince a high degree of moral turpitude or such wanton dishonesty as to imply a criminal indifference to civil obligations. N.Y.S.2d 488 (l96l) Walker v. Sheldon, 10 N.Y.2d 401, 223

(conduct must be morally culpable or actuated by evil and reprehensible

motives); Zarin v. Reid & Priest, 184 AD.2d 385, 585 N.Y.S.2d 379 (lst Dep't 1992) (conduct 27

must be so outrageous as to evince a high degree of moral turpitude or such wanton dishonesty as to imply a criminal indifference to civil obligations). "Punitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or

malicious conduct aimed at the public generally or are activated by evil or reprehensible motives." Spinosa v. Weinstein, 168 AD.2d 32,42-43,571 N.y'S.2d 747 (2d Dep't 1991).
:.-r.._

In order to recover punitive damages, a "very high threshold of moral culpability must be satisfied." Giblin v. Murphy, 73 N.Y.2d 769, 772, 536 N.Y.S.2d 54 (1988). The requisite degree of culpability has been described in the following cases: Guardian Mortgage Acceptance Corporation v. Bankers Trust, 259 AD.2d 358, 687 N.Y.S.2d 56 (1st Dep't 1999) (an

outrageous public wrong); Harrell v. Champlain Enters., 222 AD.2d 876, 634 N.Y.S.2d 880 (3d Dep't 1995) (so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others); Green v. Leibowitz, 118 AD.2d 756, 758, 500 N.Y.S.2d 146 (2d Dep't 1986) (an abuse of profess ion a1status by repeated fraudulent misrepresentations). Here, there is absolutely nothing about the conduct of Mr. Levoritz which would warrant the imposition of punitive damages. As such, Plaintiffs purported fifteenth cause of action for
~.'

punitive damages asserted against Mr. Levoritz must be dismissed. POINT XIV PLAINTIFF'S CAUSE OF ACTION FOR SLAVERY MUST BE DISMISSED

While each of the purported causes of action alleged by Plaintiff are baseless, Plaintiffs purported sixteenth cause of action that is alleged against all Defendants for slavery under 18 US.c. § 1583 and involuntary servitude under 18 U.S.C. § 1589(3), takes the concept of

28

frivolous to new heights. Plaintiff is claiming essentially that he was forced by the Defendants into slavery because he has to work to pay child support for his son. This claim must be dismissed as lacking any justification in law or fact. Regardless,

there is no private right of action under 18 U.S.c. § 1583. See Risley v. Hawk, 918 F.Supp. 18,
20 (D.C. Dist of Columbia 1996). In addition, 18 U.S.C.A. § 1589(a)(3), entitled "forced labor"

states in pertinent part: (a) Whoever knowingly provides or obtains the labor or services of a person by anyone of, or by any combination of ... (3) ... the abuse or threatened abuse of law or legal process; or U.S.C.A. § 1589(a)(3). As referenced above, Plaintiff was not forced to work because of any abuse of legal process committed by Mr. Levoritz. Plaintiff was simply ordered to pay child support for his son after he was afforded due process. See Ex. "K" to the Levoritz Aff. In addition, "involuntary and

servitude" is the condition of one who is compelled by force, coercion or imprisonment,

against his will, to labor for another, whether he is paid or not. Plaintiff is not working "against his will." No one is forcing Plaintiff to work against his will. Plaintiff has certain obligations, like everyone else, in this case, paying child support for his son. If Plaintiff cannot afford the court ordered child support obligation, he has the right to seek a downward modification. However, commencing the instant action against Mr. Levoritz and claiming, inter alia, slavery and involuntary servitude, is not the proper vehicle to seek that modification. As such, we

respectfully request that Plaintiffs frivolous cause of action for slavery and involuntary servitude be dismissed.

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r

POINT XV SANCTIONS AND COSTS SHOULD BE IMPOSED AGAINST PLAINTIFF FOR COMMENCING AND MAINTAINING THIS FRIVILOUS ACTION As discussed above, the law is clear that Plaintiff has no valid cause of action against his ex-wife's attorney, Mr. Levotitz. Pursuant to 22 N.Y.C.R.R. § 130-1.1-a(b), by signing the

pleading served upon counsel for Mr. Levoritz, Plaintiff certified that " ... after a reasonable inquiry under the circumstances, the presentation of the paper or the contentions therein are not frivolous as defined in subsection (c) of section 130-1.1." states that conduct is "frivolous" if (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false. 22 N.Y.C.R.R. § 130-1.1(c) further

(2)

(3)

22 N.Y.C.R.R. § l30-1.I(c). The case law cited above clearly indicates that interposition of the claims against Mr. Levoritz fall squarely within the § 130 definition of frivolous conduct. Based upon the

foregoing, it is respectfully requested that sanctions be imposed upon Plaintiff for his frivolous conduct in commencing and maintaining this action as against Mr. Levoritz.

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CONCLUSION For the foregoing reasons, it is respectfully requested that the Court enter an order: (1) dismissing the Complaint against Yonatan Levoritz, Esq., with prejudice; (2) imposing sanctions upon Plaintiff for commencing and maintaining a frivolous action; and (3) awarding such other and different relief as the Court deems just and proper.

Dated: Garden City, New York December 22, 2010 Respectfull y Submitted, L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P.

(J

I.

I{)

1-:;

By: __ ~~~~ ~~ _ Noah Nunberg Candice B. Ratner Attorneys for Defendant Yonatan Levoritz, Esq. 1001 Franklin Avenue, 3rd Floor Garden City, New York 11530 Tel: (516) 294-8844 Fax: (516) 294-8202 File No.: 1056695568 Of Counsel: Noah Nunberg, Esq. Candice B. Ratner, Esq.

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AFFIDAVIT

OF SERVICE

STATE OF NEW YORK COUNTY OF NASSAU

) ) ss.: )

PATRICIA D' AMATO, being duly sworn, deposes and says that deponent is over 18 years of age, resides in Dix Hills, New York, and is not a party to the action. That on the 22nd day of December, 2010, deponent served the within MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF DEFENDANT, YONATAN LEVORITZ, ESQ., FOR AN ORDER DISMISSING PLAINTIFF'S COMPLAINT AND IMPOSING SANCTIONS AGAINST PLAINTIFF upon:

Michael Krichevsky Plaintiff, Pro Se 4221 Atlantic A venue Brooklyn, New York 11224 (718) 687-2300

Nicholas S. Ratush, Esq. Attorney for Defendant, Yoram Nachimovsky, Esq. 299 Broadway, Suite 605 New York, New York 10007 (212) 964-5052

the attomey(s) for the respective parties in this action, at the above addressees) designated by said attomey(s) for that purpose by depositing same enclosed in a postpaid, properly addressed wrapper, to its last known place of business, in an official depository of the United ~~ates Postal Service in New York State.

PATRICIA Sworn to before me this 22nd da of December, 2010

D' AMATO

ANNA M. LEDEE Notary Public, State of New York No. 01LE6088035 Oualified in Nassau County Commission Expires March 03, 2011

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