OBJECTION, MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

FAMILY COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS_____________________________________________________

ELENA SVENSON, Petitioner,

-against-

MICHAEL KRICHEVSKY, Respondent-father.

_____________________________________________________

DOCKET NO. F-28901-08/10A/B

OBJECTION, NOTICE OF MOTION TO DISMISS AND FOR SUMMARY JUDGMENTSupervising Judge Paula HepnerOral argument is not requested

C O U N S E L O R S :

PLEASE TAKE NOTICE, that upon the annexed affidavit of MICHAEL

KRICHEVSKY, sworn to the 1st day of July 2011, and upon all the pleadings and proceedings

heretofore had herein, the undersigned will move this Court at the Courthouse located at 330 Jay

Street, Brooklyn NY:

For an order dismissing all void orders of hearing officer John Fasone pursuant to

Sections R5015, 3211 and 3212 of the Civil Practice Law and Rules granting dismissal and/or

summary judgment in favor of respondent Krichevsky and against the petitioner, dismissing the

petition for criminal non support, for an award of costs, disbursements and reasonable attorney's

fees to abide this motion and whole proceedings, and for such other and further relief as to this

Court and Interest of Justice may seem Just and proper.

The above-entitled actions are for criminal non-support and support order modification.

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 June 28, 2011

______________________________Michael Krichevsky, All rights reserved without prejudice4221 Atlantic Ave

Brooklyn, New York 11224(718) 687-2300

ELENA SVENSON2620 OCEAN PKWY, APT 3KBROOKLYN, NY 11235



-against-

MICHAEL KRICHEVSKY, Respondent.

_____________________________________________________

INDEX NO. F-28901-08/10A/B

AFFIDAVIT IN SUPPORTOF OBJECTION, MOTION TO DISMISS AND FOR SUMMURY JUDGMENT

Supervising Judge Paula Hepner

STATE OF NEW YORK ss.:COUNTY OF KINGS

MICHAEL KRICHEVSKY, Pro Se, without admitting jurisdiction of court except to

dismiss in his favor, deposes and says:

1. I make this affidavit in support of this objection, motions to dismiss and for summary

judgment.

2. I have personal knowledge of the facts and matters set forth in this affidavit and should I

be called upon as a Witness and/or Victim to testify in any court to the same, I can and

will testify competently thereto.

OBJECTION TO DENIAL OF DUE PROCESS, CORRUPTION OF COURT

PERSONEL, CASE FIXING AND ABSENCE OF JURISDICTION OF JOHN

FASONE IN MODIFICATION OF SUPPORT ORDER PROCEEDING MAKING

THIS AND ALL OTHER ORDERS VOID.

3. Respondent informs and calls a court’ attention that the order of Paula Hepner denying

his objection to final order of support is VOID on the ground of FRAUD UPON THE

COURT.

4. Respondent now in possession of certified documents that support his allegations.

5. Respondent repeats his last year’s allegation in his reply affidavit to petitioner’s rebuttal

that he: (a) did not receive the final order of support by mail; (b) when in the beginning of

Mach, 2010 respondent came to court to get the order, clerks told him that they do not

know where the file is; (c) respondent got a copy of order with findings of fact on April

20, 2010.

6. Reading denial order of Judge Hepner, respondent understood that clerk of public officer

Fasone is responsible for mailing orders to the parties and their attorneys and stamping

the date and to which party this order was sent.

7. Judge Paula Hepner based her denial on the 5th page of support order, which was done by

the clerk, and stated that this is the proof that support order was sent on February 25,

2010 to respondent, also stating that objection denied on procedural ground (objection

was filed one day late).

8. Respondent invites the court to examine Exhibit A, consisting of copy of objection to

reply affidavit of rebuttal, 2 certified copies of different versions of 5 th page of the

same support order and Judge Paula Hepner’s order.

9. One copy of 5th page is unique: it was filed in Kings County Supreme Court on April 13,

2011 by petitioner’s former attorney LEVORITZ as an exhibit in the separate action.

10. The second certified copy of the 5th page was given to respondent by family court clerk in

the record room on April 20, 2010.

11. As one can see, they differ. The one that came from LEVORITZ is blank, has no stamped

date as opposed to the one that came from family court on April 20, 2010.

12. There was rebuttable presumption with 50/50 chance, that respondent received this order

at the same time with petitioner and LEVORITZ since they did receive support order

mailed by family court.

13. On the other hand, why would respondent call LEVORITZ in March asking him if he got

anything from the court? Noticeably, his answer was that he did not… Now he hangs

himself through his filing and admission that he did, in fact get this order, but lied to

respondent that he did not.

14. Now it becomes perfectly clear why petitioner appeared Pro Se during objection process,

while LEVORITZ continued representing petitioner through ghost writing - to avoid his

duty as an officer of the court to speak up when silence considered as fraud!

15. This duty would require him, if called as witness, to admit to the court that respondent

called him asking for court order, which would draw an inference that respondent did not

get anything from the court at that time. Instead, he launched (from the shadow) an attack

on respondent and argued dismissal of respondent’s objection as been late. Winning by

any means was his credo.

16. The second version of 5th page is unique as well – it was likely manufactured by Mr.

Fasone’s clerk after respondent’s court visit asking for copy of the order and proof of

mailing. That is why clerks could not locate that file, because if they did, they would find

the same blank copy of the 5th page that LEVORITZ have gotten and give it to respondent

to rebut presumption that he did get that order by mail.

17. In the perfect world, what is the big deal to admit to a clerical error, apologize or not,

give respondent a copy of order and let him file objection, counting thirty days from that

day, after all, who’s got hurt? Again, it is in the interest of Justice to seek the Truth and

Justice and give it to respondent-father!

18. On the other hand, why would Brooklyn Family Court operate in the perfect world

environment when they exist on Title IV-D Federal Funding and enforcement incentives?

19. Understandably now, someone did not like a scenario where nobody got hurt! Clerks do

not operate in vacuum – someone ordered them to do it.

20. Now, it is obvious that they are proactively denying access to the court, obstruct Justice

by denying the due process to respondent-father. Now it is obvious that someone is

interested in respondent’s failure on appeal as well. Now, this 50/50 chance rebuttable

presumption that respondent got his order by mail disappears like mirage.

21. Now, respondent has the right to draw an inference that public officer Fasone conspired

with other public officers to deny respondent’s constitutional rights and Justice, and not

just biased, but also maliciously acting outside of his jurisdiction with intention to hurt

respondent.

22. Now, respondent draws an inference that public officer Fasone knowingly and

intelligently, deliberately and maliciously made his impossible to comply with final

order, which respondent was trying to appeal, and this is why respondent “must be

prevented from by any means.”

23. We are not talking about appealable error or abuse of discretion, which Mr. Fasone

implied to respondent and wanted him to believe when he told him to appeal his decision

in higher court – we are talking about felony and treason.

24. In conclusion, ANY order based on fraudulent evidence is VOID, including Judge Paula

Hepner’s order in this case.

25. Each of the above described elements constitutes fraud upon the court in the U.S., when

an officer of the court is found to have fraudulently presented facts to court so that the

court is impaired in the impartial performance of its legal task, the act, known as "fraud

upon the court", is a crime deemed so severe and fundamentally opposed to the operation

of justice that it is not subject to any statute of limitation.

26. 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 (10th Cir. 1985)

(fraud upon the court exists "where the judge has not performed his judicial duties").

27. "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, cannot be made valid by any judge, nor does it gain

validity by the passage of time. The order is void ab initio. Vallely v. Northern Fire &

Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920). "Fraud destroys the validity of

everything into which it enters," Nudd v. Burrows (1875), 91 US 426, 23 Led 286,290;

particularly when "a judge himself is a party to the fraud," Cone v. Harris (OkI. 1924),

230 P. 721, 723. Windsor v. McVeigh (1876), 93 US 276, 23 Led 914, 918.

28. At best, this whole issue smells and appearance of inappropriate conduct by Mr. Fasone

is not out of question for “reasonable observer”. The Supreme Court 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 informed of all the surrounding facts and

circumstances. See ibid; In re Drexel Burnham Lambert Inc., 861 F. 2d 1307, 1309 (CA2

1988).

29. Now, respondent moves this court for leave to reargue and renew his recusal motion to

disqualify Mr. Fasone from respondent’s case.

30. On or about May 13, 2010 KRICHEVSKY filed petition for modification of support

order, Exhibit B.

31. In it he asked for downward modification of the support order; review, adjustment and/or

clearance of arrears; review of medical support order and reimbursement of his attorney’s

fees.

32. At request of SVENSON, Hearing Officer Fasone adjourned whole proceeding from May

13 until August 2, 2010 without any truthful and valid reason over KRICHEVSKY’s

objection. SVENSON stated that her lawyer, LEVORITZ, has a “celebrity status” and is

booked for whole summer.

33. One would think that if he was that busy last summer, he should be busy this summer as

well. Attached as Exhibit C, LEVORITZ’s summer of 2011 schedule of all Courts of

New York City, according to search of ECourts. As one can see, he has only 3 clients and

only 3 appearance dates scheduled between June 29 and August 9, 2011, and there is no

future date for whole August and September – absolutely not busy and far from been

celebrity – perjury and fraud upon the court by SVENSON and LEVORITZ, while public

officer Fasone failed and refused to take a judicial notice when he granted adjournment.

34. Thereafter, he has adjourned this case numerous times over KRICHEVSKY’s objections

in total for more than one year. It was done without any real, lawful and discussed with

KRICHEVSKY reason, all while public officer Fasone’s recusal issue was not settled.

During this time, there was no activity on this case, even a conference.

35. Suddenly, for some unknown and undisclosed to KRICHEVSKY reason, Mr. Fasone

decides to enter order modifying his previous order without any evidence, hearing or

discussion that he will hold a hearing, in violation of section 205.12 of Uniform Family

Court Rules.

36. His order and Findings of Fact does not contain any fact as record is devoid of any

document submission or hearing on this case. His continuous manner in conversing with

KRICHEVSKY can only be described as playing games “ I’ve got a secret I can’t tell”

and “catch me If you can”. Needles to say that this order is VOID as well on the grounds

stated above.

ARGUMENT FOR MOTION TO DISMISS AND SUMMARY JUDGMENT

37. On or about June 14, 2010 Petitioner served Respondent with boilerplate Petition to hold

him in contempt of court titled: “Petition for violation of court order” which did not

contain any particular allegation or material fact of wrongdoing by respondent and did

not contain certified copy of support order, making petition defective and null.(Exhibit

D).

38. Her attorney LEVORITZ did not sign “The documents herein are hereby certified

pursuant to 25 NYCRR 130-1.1-A” that it is not frivolous on the blue back of this

petition and, accordingly, it is defective and null, as now it considered to be frivolous and

must be rejected and dismissed by the court.

39. Respondent cross-moved by motion to dismiss and for sanctions for frivolous litigation,

pointing to these defects in petition, thereby giving the plaintiff and the court an

opportunity to correct, replead or withdraw this petition.

40. LEVORITZ disregarded this motion by failure to reply to it, while Mr. Fasone, without

any hearing on this motion ratified his failure by declaring that he will treat this cross

motion as Respondent’s answer to petition for contempt.

41. Hypocrisy and evilness of this petition is that, LEVORITZ and FASONE together

“fixed” the child support proceeding against respondent by denying due process, perjury,

misconduct and fraud upon the court. Then, FASONE orders respondent to pay more

than he makes and then LEVORITZ wants to punish the victim and send him to jail for

been the victim of their corruption.

42. Fact, every single motion and petition of respondent was denied by Fasone, who affords

no explanation and zero tolerance to pleadings of Pro Se father, while mother’s Lawyer is

getting sliding scale of tolerance and wink-wink brother lawyer treatment.

43. If support modification proceeding was done by unbiased hearing officer in a timely

fashion, all controversies between parties would off been settled, probably, making

proceeding for petition for non-support unnecessary and moot; leaving KRICHEVSKY

healthy, still willing and able to find a new job to start over. At least that what reasonable

Officer of the Court would off though and attempted to do.

44. These adjournments of modification petition was done while KRICHEVSKY challenged

Fasone’s authority and jurisdiction, accusing him, SENSON and her attorney LEVORITZ

of corruption, BUT hearing of this issue was never scheduled or discussed.

45. Simultaneously, respondent filed motion to recuse FASONE, which was also denied.

46. FASONES’s and LEVORITZ’s actions intended to and ensnared KRICHEVSKY in the

web of family court litigation, which converted into insult of his intelligence, judicial

torture and judicial sodomy through tyranny.

47. All of the above resulted in stroke that KRICHEVSKY suffered on or about November 2,

2010, but who cares when Title IV-D enforcement money rolling in court’s coffers? .

48. Been not satisfied and confused by the due process and outcome of both FASONE’s

decisions, respondent produced an answer with counterclaims and cross-claims and

demanded a trial by jury in accordance with penal law, CPLR and both US and New

York Constitutions. Additionally, respondent demanded discovery through

interrogatories, respondent’s combined demands, bill of particulars, document production

and witness disclosure. (Exhibit D).

49. Respondent additionally notified petitioner’s attorney, LEVORITZ that by law failure to

disclose a witness before a trial would prevent him from bringing that witness at trial, as

during the conference with Mr. FASONE, LEVORITZ mentioned to him that he wants to

bring a witness at the hearing.

50. Petitioner, by her attorney LEVORITZ, again failed to reply to any of the above-

mentioned pleadings and demands and is in default.

51. When Respondent called her attorney’s office, he spoke with paralegal VICTOR

KATKALOV who told respondent that they are not going to produce a thing.

52. Such misconduct by the petitioner and her attorney constitutes frivolous and malicious

litigation in violation of Constitution, CPLR, 22 NYCRR Part 130 and attorney’s Ethics.

53. Accordingly, respondent objects to petitioner’s intent to bring undisclosed witness at trial

in her and Mr. Fasone’s attempt to conduct “a trial by ambush.”

54. Respondent is confident, that he is entitled to summary judgment because no questions of

law or fact exist in this action, since there is no violation of VOID order, which

respondent affirmatively asserted as defense in his answer, but petitioner failed and

refused to rebut.

55. The whole purpose of bringing contempt action by LEVORITZ, is his attempt to coerce

respondent-father to withdraw his timely filed appeal and petition for custody as

discussed in respondent’s numerous motions, which all denied without a hearing by

Fasone.

56. In these motions, respondent-father addresses LEVORITZ’s violation of Code of

Professional Responsibility not to file criminal charges for the purpose of gaining

advantage in civil matter, which is what child support and custody proceedings are.

57. Proof is in conversation between LEVORITZ and KRICHEVSKY after conference in

part 52 in the hall of this court and described in witness affidavit as Exhibit E.

58. Petitioner and her attorney’s numerous misconducts during this, respondents petition to

modify support order and child support proceeding, which made child support order void

per CPLR 5015 (a) (therefore not “lawful” for the purpose of this proceeding), must be

estopped through doctrine of unclean hands from seeking any relief in law or equity as

well.

59. If the jury trial is scheduled, and the jury is fully informed of the law and facts of this

case, it is unlikely that they will find respondent-father guilty for criminal non-support.

60. In the case of IN THE MATTER OF DE SANCHEZ, 2008 NY Slip Op 50342 - NY:

Supreme Court (2008) judge stated, “court may relieve an aggrieved party from a

judgment "upon the ground of . . . lack of jurisdiction to render the judgment" (CPLR

5015 [a] [4]). Under this subdivision, if the court lacked jurisdiction over a defendant,

vacatur is not discretionary (see Cipriano v. Hank, 197 AD2d 295, 298 [1st Dept

1994]; Boorman v. Deutsch, 152 AD2d 48, 51 [1st Dept 1989], appeal dismissed 76

NY2d 889 [1990]; Shaw v. Shaw, 97 AD2d 403, 404 [2d Dept 1983]). A motion to vacate

a judgment for lack of jurisdiction may be made at any time (Siegel, Practice

Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:3, at 206).

61. The judge further stated, “In the context of a motion to set aside a judgment, "extrinsic

fraud" has been defined as a "fraud practiced in obtaining a judgment such that a party

may have been prevented from fully and fairly litigating the matter'" (Bank of NY v.

Lagakos,27 AD3d 678, 679 [2d Dept 2006], quoting Shaw v. Shaw, 97 AD2d 403 [2d

Dept 1983]; see also Aguirre v. Aguirre, 245 AD2d 5, 7 [1st Dept 1997]).

62. Mr. Fasone lost his jurisdiction and the party, that “may have been prevented from

fully and fairly litigating the matter” is Mr. Krichevsky, who on numerous occasions

through his motions and on the record raised these issues as well and he is respectfully

moving this court to take Judicial Notice of Law and Facts and to do Justice!

WHEREFORE, it is respectfully requested that these objection and motions be granted in their

entirety, and for such other and further relief as to this Court and Interest of Justice seems just

and proper, including the costs of these motions.

X________________________________

MICHAEL KRICHEVSKY, Pro Se

All rights reserved without prejudice

Sworn to before me this___ day of July, 2011_________________________

NOTARY PUBLIC



-against-


_____________________________________________________

INDEX NO. F-28901-08/10A/B

AFFIDAVIT OF WITNESS

STATE OF NEW YORK SS:COUNTY OF KINGS

Semyon Furmanov, being duly sworn, says:

1. I am not a party to the action; I reside at Brooklyn, New York, and I am over 18 years of

age.

2. I know Mr. Krichevsky since the year of 2000.

3. On or about June 14, 2010 I came with Mr. Krichevsky at part 52 of Brooklyn Family

Court as observer and/or witness at his custody conference as I knew David Svenson

since 2000 as well.

4. When conference was over, Mr. Levoritz called Mr. Krichevsky and approached him.

5. I was staying about ten steps from them when Mr. Levoritz started talking to Mr.

Krichevsky.

6. Suddenly, Mr. Krichevsky became loud and said, “So, you are blackmailing and

threatening me with criminal prosecution? You are in breach of lawyers ethics!

7. Mr. Levoritz became also loud and replied, “I can do that as lawyer because you are Pro

Se!”

2

8. Then Mr. Krichevsky became angry and yelled: “You can send me to jail, but I am not

going to sell my son!”, and left.

9. When Krichevsky reached me, I said to him, “What was that for?”

10. He replied, “That ‘curse word’ made me “an offer I cannot refuse”, he wants me to

withdraw my petition for custody, drop my appeal and agree to convert my 30 grand of

arrears to judgment in exchange for him dropping contempt charges. He watched too

many mafia movies.”

11. Mr. Krichevsky was and had every right to be angry and upset with this evil conduct.

Respectfully submitted on July 1, 2011

______________________________SEMYON FURMANOV

Sworn to before meon July , 2011

_______________________NOTARY PUBLIC

3



-against-


_____________________________________________________

INDEX NO. F-28901-08/10B

AFFIDAVIT OF MAIL SERVICE

STATE OF NEW YORK SS:COUNTY OF KINGS

Semyon Furmanov, being duly sworn, says:

1. I am not a party to the action; I reside at Brooklyn, New York, and I am over 18 years of age.

2. On the ____ day of July, 2011, I served the within Objection, Notice of Motion to Dismiss and for Summary Judgment together with Supporting Affidavits, by depositing true copies thereof, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to the following at the last known address set forth below:

ELENA SVENSON2620 OCEAN PKWY, #3KBrooklyn, New York 11235

______________________________SEMYON FURMANOV

Sworn to before meon July , 2011

_______________________NOTARY PUBLIC

FAMILY COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DOCKET # F-28901-08/10A/B


-against-

MICHAEL KRICHEVSKY, Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

OBJECTION, NOTICE OF MOTION TO DISMISS AND FOR SUMMARY JUDGMENT, SUPPORTING AFFIDAVIT

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

The documents herein are hereby certified pursuant to 25 NYCRR 130-1.1-A

By: ________________________________

Michael Krichevsky, Pro Se 4221 ATLANTIC AVE.

Brooklyn, New York 11224 (718) 687-2300

Documents

OBJECTION, MOTION TO DISMISS AND FOR SUMMARY JUDGMENT