reply to motions to dismiss

8/3/2019 Reply to Motions to Dismiss

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGSINDEX NO . 24714110MICHAEL K RICIIEVSKY,

Plaintill. REPLY 10 MOIIONS TO-against-ISMISSYONATA N LEVORITZ. ESQ, YORAM NAChIIMOYSKV, ESQ,ELENA SVENSON, Defendants.

STATE OF NEW YORK5.:COUNTY OF ICINGSMTCT TARL KRICFIEVSKY, Pro Be, under penalty of perjury deposes and says:'have fimthand knowledge at the facts and flatters herein referred to by me exceptwhere indicated to be on infomiation and heliel and "here so stated I verily believethem to be true.

2. I make this Reply in opposition to the la"yers-defcndaiits two instant motions to dismiss.3 The issue hellire the Cou rt on a niolior, to dismiss for failure to state a cause of action is not

whether the cause of action can be proved, but whether one les been slated (STA KILLS vSTATE. 42 NY 2d 272, 397 N YS 2d 7 40 (1977)). A pleading does not slate a cause ofaction when it fails to allege 'wongdoing by a defendant upon which relief can be granted(LEY BLDG CORPv !EPFCKLONSIRIJCIJON. 104 AD 2d 231, 482 NYS 2d510(2nd Dep t., 1984)). The Co urt mus t accept the flicts alleged as true, and determ ine whetherhey litany cognizable legal theory (CPLR Sec. 321 1(a)(7); MA RUNE V. MARUNE, 50


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NV 2d 48!, 429NYS 2d 592 (1980); KLONDIKE GOLD AFC v RICHMONDASSOCIATES, 103 AD 21 2 1,478 NYS 2d 55(2nd Dept., 1984)

4 In the case PIa,ay or CIA, 953 F.2d 26it. 1991), the Circuit Court or Appeals ruledthat the District Court should have explained to the litigant proceeding without a lawyer,the con -ect pleadings &imi to the plaintiff so that he could have amended his pleadingsaccordingly. [his is what the court said' We think that Platsky should have a chance tostate his claim more clearly. It is not beyond doubt that the plaintiff can prove no set offacts in support of his claim[s], HaO'es v. Kernsr 404 U.S. at 521, 92 SCt, at 595. andtherefore we hold that the better course would have been or the district court, in dismissingPlatsks pro so complaints, to grant him leave to tile amended pleadings. See kilioct ttBronson. 872 F.2d at 22. We have instructed Platsky that his complaint must set out, will,particularity and specificity, the actual harms he suffered Trip result of the defendantsclearly defined acts.

5. In the case Roll Elec., Inc. v. Cii' in s -New York, 53 F. 3d 465 (2nd Cir. 1991). the court

stated: Dismissal is appropriate only if ppears beyond doubt that the plaintiff canprove no set of facts in support of his claim which would entitle him In relief."

6. In die case Ricci u/i V NYC Transit Authorily, 941 F. 2d 119 b2 n d Cir. 199111he court stated:The appropriate inquiry, therefore, is not "whether a plainti ITwill ultimately prevail butwhether the claimant is entitled to offer evidence to support the claims"

7. Plaintiff respectfully reserves the right to amend his pleadings without leave ofeourt, andsince lawyer Miss. Ratner pointed out to some deJcts in plaintiffs complaint, he decidedto amend it without any argument or waste Of Court's time. Exhibit A.


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X. CPLR 3025 (a) states:

Amendment without leave. A party may amend his pleading once without leave of courtwithin twenty days after its service, or at any time before the period for responding to itexpires, or within twenty days after service of a pleading responding to it.

9. CPLR 3011 tells us which kinds of pleading exist and CPLR 3018 describes whatresponsive pleading is.

10. Accordingly, Defendants-attorneys motions to dismiss is not pleading within ntcaning ofCPLR 3011; there is lack olaffidavits denying or skinning Plaintiffs facts withspecificity, point for point.

Il - Overall, these motions merely attorney's arguments and opinions and Poundisurmisedthat out off sixteen causes ofaction they did not find at least one that will survive dismissalof Plaintifi's complaint or they did not find at least some vagueness asking for motion tocorrect pleading.

12. In the matter ol Owe,' v Guy of Independeirce the judge stated: " lie innocentindividual who is harmed by an abuse of few emnientat authority is assured that he willbe compensated for his injt'ry.

13- Plaintiff under impression that delense attorneys in concert are trying confuse Plaintiffand deceive the court.

14. Cases that are sited in these motions do not apply to Pro Se Plaintiff.15. Plaintiff would like to point these public tnistees and fiduciaries that it is their duties to

show the court not only cases in their favor, but in favor of Plaintiffas 'veil. I beg apardon bt't I did not find at least one listed in Memorandum of Law in favor of


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Plaint if.16 . S ee United States v. Dial. 757 F.2d 163, 168 (7th Cr1985) "Fraud in the common law

sense of decide is committed by deliberately misleading another by words, by acts, or,in some instances - - notably where there is a fiduciary relationship, which creates aduty to disclose all material facts - by silence. See Prosser and Keeton on the law ofToils 105-06 (5th ed. 1984).

17. Miss. Ratiter on page 2 oIjnstant motion writes that plainti IT served but did not rile nationfor sanctions against LEVORITZ. That is not true; it was filed in court mid duringconference with Mr. Fasone oil July 13, 2010 lie reads into the record from page 13 to page15 of the defendant' Exhibit N ofinstamtt motion. olicitc he says that it stamped "receivedon July 12, Kings County Family Court?

18. later on Mr. Fasoite held Star Chamber hearing without KRIcIIEVSKY and IEVORITZand dismissed this cross-motion - yet another proof that plaintiffs case was fixed. Exhibit

19. Notice, that order dismissing motion for court reporter was filed on July 12 according tothat record, but order says that it was filed on July 26- Funny, it was signed by Fasone o,tJuly 13 before it was filed on July 26.

20. Notice also that plainti li's motion for frivolous litigation was dismissed withoutLEVORITZ present; we know it was filed on July 12, but order says it that it was filed onJuly 26 and dismissed on August 12 and hat only KRICIIEVSKY was present.

21. How would Fasone start any hearing on this motion without LEVORITZ' reply and in hisabsence?


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".Plaintiff wonders pow i Ithat dismissal was the reason that I EVORIFZ didn't even botherto reply to plailiti l's crosstnotion knowing that it will he dismissed by Mr. passive?

23. The presumption that the courts are fair and unbiased is a cherished thought for mostPeople. 'lucre is no greater shock than' to find that even with both law and facts in yourfavor, your constitutional rights are worthless because you can't get the courts to enforcethem

24. In regard to LEVORITZ allidavit in the instant nrntion, it is plaintilis understanding thatby tacit admission he is not claiming truth of his slanderous statements to ltasone as

affirmative defense; and according to you Miss Ratner, he is only claiming immunity. SeeCucalo,i v. State tINY, 103 Misc. 2d 808- NY: Court at clain,s 1980 - 'The failure todeny the facts is therefore deemed a tacit atlniigsion of their truth."

25. Once qualified privilege has been established, a Plaintiff must show that detndants actedwith malice in order to overcome the pnvilege. That is, a plaintiff must collie forth withsome evidence that the statements were 'false and that the defendant was actuatedby express malice or actual ill-will." SlmkuR; 397 N.Y.S.2d 740, 366 N,E.2d at 834.Evidence of the falsity of a statement alone is insufficient to raise an issue of fact as tomalice. Kasafhkoffr. Ci'y ofNew York 107 A.D.2d 130, 485 N.Y.S2d 992,996 (App. Div1st Dept 1985). Malice in this context means p ersonal spite or ill will, or culpablerecklessness or negligesve2 Shapiro itHealth Ins, Plan ofGreater Rsv York, 7 N.Y.2d56, 194 N.Y.S.2d 509, 163 NE.2d 333. 336 (1959) (quoting Hoeppuer v Dunkirk PrimingCa, 254 N.Y. 95, 172 N.E. 139, 142 (1930)).

26. Plaintiff challenges LEVORITZ to explain how he helped his client, David Svenson, byfiring Plaintiff form hisjob and obtaining uncolleetable child support order,


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27. Let bin' explain to Jury how that racial statement about Plaintiff is per hateful andmalicious, but material and necessary in obtaining child support order!

28 let him jell Plaintiff and Jury which, person told LEVORITZ that Mr. Kriehevsky incahoots" with Mr. \Vittensteio.

29. In paragraph 14 of LEVORITZ' affidavit he quotes Fasone' statement:

the only fact or the only basis I made any decision on is what I saw and heard in thecourtroom. I don't believe 1 was prejudiced against you or your ease. I don't believe I wasprejudiced or in favor of either party. I made a decision based on what was said in thecourtroom."

30, '[his statement is actually in favor of Plaintiff as It more admits that he relied onLEVORITZ' statements, which we all b'no'v are not Into,

at If you would read my prior or amended complaint regarding slander action you would,Miss. Ranier, see what Mr. Fasone heard - IF,VORITZ' lies and he saw DOCTORED byNACHIMOVSKV and lEVORIl'Z' perjured affidavits of Defendant SVENSON.

32 Miss. Ratner wants to dismiss PlaintifiComplaint based on documentary evidence,33. Plaintiff would like to know what kind of evidence transcripts of child support hearing are.34. What do they prove? 1lmt LEVOR1IZ slander Plaintiff?35. Is a copy of VOID child support order any kind of proof that LEVOR]TZ obtained this

order by fair play"?36- If Miss. Ratncr considers this order as evidence and reason to dismiss Plaintif complaint -

this "evidence" is no more - since it was set aside by Judge Paula Hepncr on October 24,2011 Copy of this order was attached to Plaintiff's motion to adjourn last hearing.

WHEREFORE, it is respoetfidly requested that Defendants's motions to dismiss be


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denied..

Michael Kiicbevskv, Pro Sc, pursuant to 28 U.S.C. 1746, under penalty olperjury dcclarcsthat the foregoing is true and correct.

__ ______MIChAEl. KRICHEVSKY, Pro Sc. All Rights reserved Withoutprejudice

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