JOHN FASONE RECUSAL TRANSCRIPT

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FAMILY COURT OF THE STATE OF NEW YORK COPYCOUNTY OF KINGS

-------------------------xELENA SVENSON,

Petitioner, DOCKET NO.F-28901-08

- against -

MICHAEL KRICHEVSKY,

Respondent.--------------------x

330 Jay StreetBrooklyn, New York 11201

July 13, 2010

B E F 0 R E : JOHN FASONESUPPORT MAGISTRATE

APPEARANCES: YONATAN S. LEVORITZ, ESQ.Attorney for the Petitioner2306 Coney Island AvenueBrooklyn, New York

JACOB FOGEL, ESQ.Of counsel toYONATAN S. LEVORITZ, ESQ.Attorney for the Petitioner2306 Coney Island AvenueBrooklyn, New York

MICHAEL KRICHEVSKYRespondent Pro Se

TRANSCRIBER: DOROTHY FLORENTINO

Proceedings recorded by electronic sound recording Transcriptproduced by transcription service

ANGIE DePOMPO COURT REPORTING SERVICE

86 Kensico Street

Staten Island, New York 10306

(718) 667-9484

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1 INDEX

2 WITNESSES DIRECT CROSS

3 [No witnesses examined.]

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6 EXHIBITS

7PETITIONER'S DESCRIPTION I.D. IN EV

8[No exhibits marked/admitted.]

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Angie DePompo Court Reporting Service(718) 667-9484

Proceedings 3

1 VOICE: This is number 12 to 24 on the calendar,

2 in the matter of Krichevsky.

3 Counsel.

4 MR. FOGEL: Jacob Fogel, of counsel to Yonatan

5 S. Levoritz, at 2306 Coney Island Avenue, for Elena

6 Svenson.

7 THE COURT: Sir, raise your right hand.

8 MR. KRICHEVSKY: Before I start, I also move the

9 Court to have an official court reporter present. I also

10 filed a motion yesterday.

11 THE COURT: Sir, there are no official court

12 reporters. These are recorded proceedings. I need your

13 name. I need you to raise your right hand and swear --

14 MR. KRICHEVSKY: But it's defective because when

15 I obtained the record for appeal, half of the --

16 THE COURT: All right. We're going to recall

17 this case.

18 Sir, there are no reporters. Think about it.

19 We'll call this case --

20 (Whereupon, a break was taken for recall.)

21 VOICE: This is a recall on number 12 on the

22 calendar, in the matter of Krichevsky.

23 Counsel, your appearance.

24 MR. LEVORITZ: Yonatan S. Levoritz, 2306 Coney

25 Island Avenue, Brooklyn, New York, on behalf of Elena


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Svenson.

Good afternoon, Your Honor.

THE COURT: Good afternoon, counsel.

VOICE: Ma'am, raise your right hand.

ELENA S V E N S O N, was duly sworn and

testified as follows:

VOICE: In a loud, clear voice, your, name,

address and social security number.

MS. SVENSON: 2620 Ocean Parkway, 3K, 11235,

Brooklyn, New York, fIgNaNank.

VOICE: Could you give your name, ma'am?

MS. SVENSON: Elena Svenson.

VOICE: Thank you.

VOICE: I'm sorry?

VOICE: Should I take his appearance over?

VOICE: No. Well, actually, since it's a

different attorney, he needs to state his appearance.

I'm sorry, did you already state your

appearance, counsel?

MR. LEVORITZ: Yes, I did.

VOICE: I'm terribly sorry.

MR. LEVORITZ: It's okay. Do you want me to do

it again?

VOICE: No, that's okay, and Mr. Fogel is not

here,

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Proceedings 5

1 MR. LEVORITZ: Not now, no.

2 VOICE: Sir, raise your right hand.

3 M I C H A E L K R I C H E V S K Y, was duly

4 sworn and testified as follows:

5 VOICE: In a loud, clear voice, your name,

6 address and social, please.

7 MR. KRICHEVSKY: Michael Krichevsky,

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9 VOICE:' Your address.

10 MR. KRICHEVSKY: 4221 Atlantic Avenue, Brooklyn,

11 New York 11224.

12 VOICE: Thank you. Have a seat.

13 THE COURT: All right. Good afternoon,

14 everybody.

15 All right. So, I will note that Mr. Levoritz is

16 now in as opposed to Mr. Fogel from earlier.

17 VOICE: Shall I strike Mr. Fogels name from the

18 case, Your Honor?

19 THE COURT: Can you put the two in because he

20 did make an appearance?

21 VOICE: Sure. Yo-d can put as many as you need

22 to.

23 THE COURT: Then let's put both in for today --

24 VOICE: Okay.

25 THE COURT: -- because they did both give

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II Proceedings 6

1 appearances.

2 All right. Ma'am, you arrived to the -- you

3 weren't here this morning. What happened?

4 MS. SVENSON: It's just that --

5 THE COURT: I understand that Mr. Levoritz was

6 in another Court and you had somebody standing in for you,

7 but, ma'am, we were waiting for you all morning. We

8 didn't get any word about you.

9 MR. LEVORITZ: There was some confusion in my

10 office, Your Honor. There was an emergency Order to Show

11 Cause, which I'm still actually dealing with over at IDV,

12 and I have to go back there when we're done here, but

13 there was some confusion. My office actually didn't call

14 Ms. Svenson till this morning. My para --

15 THE COURT: She has a petition on today. She

16 had to know about today's date.

17 MR. LEVORITZ: I filed the petition, Your Honor.

18 THE COURT: And you didn't tell her?

19 MR. LEVORITZ: I don't know if I communicated it

20 properly.

21 THE COURT: Okay.

22 MR. LEVORITZ: I apologize to the Court, and I

23 already explained the circumstance to the -- to Mr.

24 Krichevsky, and I apologized. I don't know what happened.

25 There must have been a miscommunication between myself and


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Proceedings 7

my paralegal and Ms. Svenson.

MR. KRICHEVSKY: You did not explain me. You

just asked for adjournment.

MR. LEVORITZ: I did explain it.

THE COURT: All right. Well, let's put on the

record then an issue that Mr. Krichevsky had raised when

we broke this morning. -

Sir, you were questioning or requesting that an

actual court reporter be present to transcribe the

proceedings or the minutes of these proceedings.

MR. KRICHEVSKY: Yes. Let me explain. I --

THE COURT: You don't have to explain, sir,

because the rule is electronic recordings of these

proceedings are authorized by statute. The Supervising

Judge of this building made the decision that actual court

reporters are no longer required for these cases. So,

there is no court reporter who is going to be made

available, quite frankly.

If you want a transcript -- if you need a

transcript of these proceedings, everything that is being

said in the courtroom is being recorded. There are

transcribers who are trained to prepare transcripts off

the recording. You can order that through the Parts

Division.

MR. KRICHEVSKY: Which I did, and when I got it,


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Proceedings 8

1 basically, half of these recordings or so-called

2 transcripts says, inaudible, which is like I'm looking at

3 objections by my attorney, and it has, Your Honor,

4 inaudible, and I can show you that, and now I cannot make

5 my record for appeal because it says, inaudible, or there

6 is something not said.

7 THE COURT: Well, you can always make a Record

8 of Appeal, sir. I realize -- I mean, you objected to my

9 decision back earlier in the year.

10 Judge Hepner denied the objection? Somebody

11 denied the objection.

12 MR. LEVORITZ: Yes, Judge Hepner.

13 THE COURT: It was Hepner?

14 MR. LEVORITZ: It was Judge Hepner.

15 THE COURT: Okay. And her decision, sir, -- her

16 order is certainly appealable to the Appellate Division.

17 MR. KRICHEVSKY: Which I did, and now I'm

18 looking -- I'm looking --

19 THE COURT: We're waiting on the appeal.

20 MR. KRICHEVSKY: I'm looking at the records, and

21 half of the objections are not there. Half of what was

22 said word, it's impossible. I can give you an example

23 where it's impossible from the record to understand what

24 you're talking about.

25 THE COURT: Well, I'm not sure I have seen a


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1 transcript.

MR. KRICHEVSKY: Would you like me -- I'll give

you an example when I cannot understand what's going on.

THE COURT: I understand what you're saying,

sir. These things happen quite frequently, but those are

decisions that are made by persons in higher authority.

So, I have no authority to request, produce, obtain a

stenographer to transcribe these proceedings. It's just

not going to happen, but to the extent that you made the

request and I denied it, and I'm speaking as loud as I

can, the microphone should pick this up, it's preserved

for the record, and you can appeal from that decision

going forward.

MR. KRICHEVSKY: Can I bring my reporter?

THE COURT: No. Why would you do that?

MR. KRICHEVSKY: Just to make sure when reporter

is here, reporter actually lets you know --

THE COURT: Sir, there is no provision in the

Family Court Act for use of private stenographers to

transcribe Court proceedings.

MR. KRICHEVSKY: Is there law prohibiting?

THE COURT: Yes, the one that --

MR. KRICHEVSKY: Could you state it, what's the

law, because I couldn't find the law.

THE COURT: Well, sir, you have had legal


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lcounsel before. You work for a law firm. I am not

2 prepared to give you a citation, but it's not really

3 necessary.

4 MR. KRICHEVSKY: I worked for law firm, and they

5 usually had official court reporter all the time, and if

6 reporter misunderstood, reporter would stop and say, what

7 did you say, could you spell it, could you -- and then you

8 do that.

9 THE COURT: But once again, sir, we're not here

10 to discuss which is better. The legislature has approved

11 it. The Supervising Judge has issued her direction.

12 There will be no court stenographer provided for these

13 proceedings, but, again, you raised the issue, I denied

14 it, the issue is preserved for the record, okay.

15 MR. KRICHEVSKY: Thank you.

16 THE COURT: Okay. Moving on, you, sir, Mr.

17 Krichevsky, I believe you had filed first. You had filed

18 a motion --

19 MR. KRICHEVSKY: To recuse.

20 THE COURT: Actually, maybe you didn't file

21 first. I think it's you had filed first.

22 VOICE: Your Honor, the petitioner would have

23 had to have been filed first for Mr. Krichevsky to file a

24 motion --

25 THE COURT: That would make sense.

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Proceedings 11

1 Well, we already have an adjourn date on Mr.

2 Krichevsky's petition for modification. That's August the

3 12th.

4 Ms. Svenson has filed a petition for enforcement

5 that was returnable today.

6 Mr. Levoritz, has your client -- did she serve

7 Mr. Krichevsky with that?

8 MR. LEVORITZ: Yes, Your Honor, and I'll hand up

9 the Affidavit of Service I have right here, Your Honor.

10 THE COURT: All right, why don't you hand that

11 forward.

12 Sir, were you served with the papers on the

13 lady's new petition for enforcement?

14 MR. KRICHEVSKY: Yes, I did.

15 THE COURT: Okay. The affidavit alleges service

16 by -- oh, here, I think. Was it here on the 10th floor?

17 MR. LEVORITZ: Yes. It was at the very same

18 time as -- Mr. Krichevsky is moving for custody of the

19 child. It was the same day. We came here.

20 THE COURT: All right. So, Mr. Krichevsky

21 admits receiving the papers, so we do have jurisdiction.

22 And you were served with the motion, Mr.

23 Levoritz, --

24 MR. LEVORITZ: Yes, I was served with both --

25 THE COURT: -- or your client was?


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MR. LEVORITZ: -- both motions.

THE COURT: Both motions?

MR. LEVORITZ: Well, there's a Notice of Motion

to use the court reporter, which Your Honor just

addressed, and a Notice of Motion for Sanctions and

Frivolous Conduct.

THE COURT: I didn't realize there was a motion

before the court -- I thought it was an oral application.

MR. LEVORITZ: I have a written motion here,

Your Honor.

THE COURT: You do? Come on.

VOICE: It's only for recusal.

THE COURT: That's what I thought.

MR. KRICHEVSKY: I filed simultaneously motion

for frivolous conduct and motion for court reporter, same

day.

THE COURT: Well, they only calendared one

motion for today, but --

VOICE: Your Honor, it should all be in the top

file.

THE COURT: It stops with the Notice of Appeal.

I don't even see the motion attached to the file.

There's an order on motion number two on the

underlying.

VOICE: Wait.


Proceedings 13

1 THE COURT: You got it?

2 All right, but anyway, counsel, you say that you

3 were -- whatever motions are calendared or have been filed

4 were served.

5 MR. LEVORITZ: Yes, Your Honor.

6 THE COURT: Order to Show Cause, that's last

7 year.

8 What I'm doing is just taking a quick look to

9 see if I can find this thing. I thought it actually was

10 attached. Actually, I'm not seeing any motion.

11 VOICE: Just backup documents from the original

12 petition.

13 THE COURT: These?

14 VOICE: Those three, yes.

15 THE COURT: Maybe it was filed -- Petition for

16 Violation. Oh, maybe it is there.

17 Yes, Judge Hepner's order. I don't have the

18 motion.

19 VOICE: I don't understand that, Your Honor, I

20 put it in there myself.

21 THE COURT: You put it in the file? Petition on

22 an order. Order motion number two. I got that Notice of

23 Appeal, no motion.

24 MR. LEVORITZ: For purposes of oral argument,

25 would Your Honor like my copy?

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THE COURT: Well, hold onto your copy.

MR. KRICHEVSKY: I could read this motion?

THE COURT: I actually want to see the one that

was filed.

You put it in the file, you said?

VOICE: I did. I scheduled the motion.

THE COURT: You put it on top?

VOICE: I put everything in chronological order.

THE COURT: And you're saying it's not in the

jacket?

Oh, wait, wait, here we go, wait. I found it.

Were these all exhibits then?

All right, I located the motion, Notice of

Motion to Recuse, --

VOICE: That's it.

THE COURT: -- which is calendared as the --

VOICE: It's number one on the B petition.

THE COURT: Number one on the B?

VOICE: Yes.

THE COURT: All right, but that's the only one

that's calendared -- actually, Mr. Levoritz, can I just

see what you have as the second motion --

MR. LEVORITZ: Yes, Your Honor.

THE COURT: -- to see if I can find it in here?

MR. LEVORITZ: Would Your Honor like me to


Proceedings 15

1 approach or --

2 THE COURT: Yes, you can approach.

3 Notice of -- this is your Notice of Cross-

4 Motion.

5 MR. LEVORITZ: No, Your Honor. That was served

by Mr. Krichevsky.

7 THE COURT: His Notice of Cross-Motion.

8 MR. LEVORITZ: I haven't served any motions.

9 THE COURT: Did you file this cross-motion, sir,

10 with the Clerk's Office?

11 MR. KRICHEVSKY: Yes, yes, together. Two

12 motions simultaneously, and actually, mine stamped.

13 THE COURT: Counsel, why don't you take this

14 back.

15 Let me see the stamped copy. You can have a

16 seat, sir. The officer will come and get it.

17 Stamped, received July 12th. You filed this

18 yesterday.

19 MR. KRICHEVSKY: Like I said, together with the

20 motion for court reporter.

21 THE COURT: Where did you file this, which

22 floor?

23 MR. KRICHEVSKY: 5th floor.

24 THE COURT: You filed it on this floor?

25 MR. KRICHEVSKY: I believe so. Yes, where --


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THE COURT: The 6th floor with Ms. Murphy?

MR. KRICHEVSKY: No, no, no.

THE COURT: No, you're not an attorney. She

wouldn't take it.

MR. KRICHEVSKY: No, I believe it's -- it's 5th

floor, yes.

VOICE: I'm not showing any motion that's been

recently filed, other than the one that you just located,

which would be number one on the B supplemental, which is

a motion to recuse.

THE COURT: All right. Well, it is stamped,

received July 12th, 2010, Kings County Family Court.

I'm going to give this back --

MR. KRICHEVSKY: There is a metal door. You

just come inside --

VOICE: He filed it with Parts?

MR. KRICHEVSKY: -- and they take it and they

stamped it over there.

THE COURT: Did they say there were going to put

it in on the calendar?

MR. KRICHEVSKY: They didn't tell me anything.

They just stamped it, and that's it.

THE COURT: Well, we'll have to get to the

bottom of that.

All right, but in any event, regarding the


Proceedings 17

1 motion that is on today's calendar, why don't you tell me,

2 sir, what you want to tell me about that, and then we'll

get to the lady's petition for enforcement.

4 Why is it that you want me to recuse myself from

5 hearing this matter?

6 MR. KRICHEVSKY: Let me start from the facts.

7 On October 27th, 2008, petitioner quietly filed

8 fraudulent petition for Order of Protection against

9 respondent, forcing him out of his apartment on 4336

10 Manhattan Avenue in Brooklyn, New York, which petitioner

11 abandoned in Summer of 2008, and moved to her apartment,

12 2620 Ocean Parkway, 3K.

13 THE COURT: What are you reading from?

14 MR. KRICHEVSKY: I'm reading from my motion.

15 I'm just --

16 THE COURT: What page?

17 MR. KRICHEVSKY: Page 2.

18 THE COURT: Why are you reading from the motion,

19 sir? I could read the motion.

20 MR. KRICHEVSKY: Because it's easier --

21 THE COURT: Why do you think I can't decide this

22 case fairly? That's the real gist of it.

23 MR. KRICHEVSKY: Because -- because -- okay,

24 I'll tell you. Because you stayed discovery. You did not

25 allow witness that we called to testify. We wanted to


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impeach her sister and petitioner because whatever they

said was perjury, and two times, we attempted to serve --

one time we attempted to serve Interrogatory. My attorney

tried to do that, and you -- during cross-examination, I

believe it was October or August hearing, you prevented.

You said, no, you are not taking the address of the

sister. So, how can we impeach -- she can lie, and we

cannot cross-examine her sister.

She said that the sister is financially

supporting her.

THE COURT: Well, I made rulings, yes, sir.

MR. KRICHEVSKY: Yes, and --

THE COURT: I made rulings against both parties.

MR. KRICHEVSKY: Yes, and I indicated that the

sister cannot support her because she is in Public

Assistance in Germany. I think it's a very important

question for the Court to find out.

THE COURT: How does any of that show I'm biased

against your case?

MR. KRICHEVSKY: Because you're protecting her.

You're acting like a counsel because --

THE COURT: How did I do that?

MR. KRICHEVSKY: -- because you prevented my

attorney to get address of her sister. We wanted to send

Interrogatories.


Proceedings 19

1 THE COURT: Sir, third party discovery is not

2 authorized by statute.

3 MR. KRICHEVSKY: But she opened the door.

4 THE COURT: Well, we can argue about this all

5 day, sir, but I made rulings, evidentiary rulings --

6 MR. KRICHEVSKY: Okay, so, --

7 THE COURT: -- or procedural rulings. Those are

8 all reviewable by appeal.

9 MR. KRICHEVSKY: So, that's -- that's why --

10 THE COURT: This is before the Appellate

11 Division, sir.

12 MR. KRICHEVSKY: Another -- another thing --

13 THE COURT: If they decide that I prejudiced

14 your case, they'll either send it back to me or send it to

15 a different magistrate, but none of what you're saying,

16 sir, shows any personal bias against you or your case.

17 MR. KRICHEVSKY: Well, let me give you another

18 example where you should have acted that you did not.

19 THE COURT: What page are you looking at now?

20 MR. KRICHEVSKY: I'm looking page 7. Her

21 attorney said, Your Honor, unfortunately, in certain

22 communities it does happen where known lawyers actually

23 own law firms, and it is a lawyer that's used as a front.

24 What is material about certain communities that

25 he alleged -- he is implying at my national origin, and --


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THE COURT: But how does that show bias against

MR. KRICHEVSKY: I'll tell you because you were

not supposed to let him -- you were supposed to comment on

this, okay. He cannot do that. You prejudiced by my

origin, okay.

THE COURT: Sir, can I stop you one second?

MR. KRICHEVSKY: Yes.

THE COURT: When magistrates or Judges make

decisions or rulings, -


THE COURT: -- yes, it prejudices somebody's

case if it goes against that party's wishes, -

MR. KRICHEVSKY: So, every ruling was against

me.

THE COURT: -- but that's part and parcel, sir,

of the job of deciding cases. You have to show -- if you

want me to recuse myself, sir, you have to make a showing

that I either have some personal bias against you or your

case or some personal interest involved that makes my

hearing the case improper.

All you're doing right now, sir, is pointing out

deficiencies that you believe I committed or I made --

deficiencies in my conduct of the hearing.

MR. KRICHEVSKY: Let me read --


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1 THE COURT: Once again, sir, that's not a basis

2 for recusal. It may be a basis for reversal on appeal,

3 but it's not a basis for recusal.

4 MR. KRICHEVSKY: Well, this is what Judicial

5 Canon 3 said, that the Judge shall require lawyers in

6 proceeding before the Judge to refrain from manifesting by

7 words or conduct bias or prejudice against upon age, race,

8 greed -- I mean, creed, color, sex, sexual orientation,

9 religion, national religion.

10 So, when he made that comment, it wasn't

11 appropriate.

12 THE COURT: Well, once again, sir, if you think

13 that I've committed violations, ethical violations, then

14 report it to the proper authorities, but I have no

15 interest in your case, sir. I didn't know the two of you

16 before you walked in my courtroom. The only thing, sir, -

17

18 MR. KRICHEVSKY: If you have no interest --

19 THE COURT: -- the only -- the facts are the

20 only basis I made my decisions on is what I saw and heard

21 in the courtroom. I don't believe I was prejudiced

22 against you or your case. I don't believe I was

23 prejudiced or in favor of either party. I made a decision

24 based on what was said in the courtroom.

25 So, unless you got something more --

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MR. KRICHEVSKY: Why was I denied due process?

Why I cannot cross-examine? Why there was no deposition

of me or her?

THE COURT: But, sir, that's not a basis for

recusal.

MR. KRICHEVSKY: I think -- I think --

THE COURT: That's a basis for a reversal on

appeal --

MR. KRICHEVSKY: -- denial of due process shows

prejudice.

THE COURT: What?

MR. KRICHEVSKY: I think denial of due process,

it shows prejudice.

THE COURT: No, it's

MR. KRICHEVSKY: You did not allow.

THE COURT: -- reversal error.

MR. KRICHEVSKY: Excuse me, I didn't hear it?

THE COURT: Reversal error. It is not evidence

of bias.

MR. KRICHEVSKY: Well, to me, I have my own

opinion, -

THE COURT: Of course you do.

MR. KRICHEVSKY: -- and I'm entitled to my

opinion, and basically, law says, if there is an

appearance of bias, if I believe you are biased, okay,


Proceedings 23

that's the reason for me to ask you to recuse, and if you

2 don't care about this case, why don't you recuse yourself,

3 and I'm not going to be paranoid about it, okay, because

4 right now, I am paranoid that you are biased.

5 THE COURT: Well, sir, I have to make decisions,

6 and as I said, if I make a ruling against you, yes,

7 prejudice is your case, but that's built into the legal

8 system.

9 Once again, sir, I have no -- I don't know you

10 or Ms. Svenson personally. I have no interest in the

11 outcome of this case. I made decisions and rulings based

12 on what was seen and heard in the courtroom.

13 Yes, I had serious -- I had serious problems

14 with the way this case was being presented, and I had

15 serious problems with your credibility, sir.

16 MR. KRICHEVSKY: With my credibility?

17 THE COURT: With your credibility. So, yes,

18 that prejudiced your case.

19 MR. KRICHEVSKY: Could you state something I

20 said or didn't say or lied. Did you find me lying?

21 THE COURT: That's not what this is about, sir.

22 MR. KRICHEVSKY: What is it about?

23 THE COURT: It's about you presenting a reason

24 why I should not continue to hear this matter, and so far,

25 I haven't heard one.

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Proceedings 24

MR. KRICHEVSKY: No. When you said you found me

not credible, I want to see an example why you think I'm -

THE COURT: I don't have to explain that to you,

sir. I made my findings. It's all in there.

MR. KRICHEVSKY: Why you don't have to explain

to me?

THE COURT: Because I don't.

MR. KRICHEVSKY: Can I move the Court to explain

where I made --

THE COURT: No.

MR. KRICHEVSKY: No, okay. So, you want to rule

on the motion? You refused to recuse?

THE COURT: Well, first, I want to hear from Mr.

Levoritz. Is that all you have to say, though?

MR. KRICHEVSKY: No, I have -- I have my motion.

You don't want me to read. You know, I have --

THE COURT: Because I can read it.


THE COURT: I need time to have --

MR. KRICHEVSKY: Did you read it?

THE COURT: I didn't see it until just this

minute, sir.

MR. KRICHEVSKY: So, why don't you let me read

it?


Proceedings 25

M THE COURT: Because that's not what this is

about either. I have other people waiting outside, sir.

3 MR. KRICHEVSKY: I am entitled to make proof of

4 record.

5 THE COURT: Good. I promise you I will read it.

6 Mr. Levoritz, you read it.

71 MR. LEVORITZ: Yes, --

8 THE COURT: How do you respond?

9 MR. LEVORITZ: -- yes, Your Honor. Very simply,

10 Your Honor made lots of rulings against me as well. In

11 fact, I took objections from Your Honor's initial order,

12 which were denied.

13 Rulings go both ways. Your Honor makes rulings

14 whichever way Your Honor wants to go. It doesn't make a

15 difference.

16 He is a pro se litigant, I understand that,

17 therefore, he feels he should make this motion. He's made

18 four or five motions already between the Family Court with

19 regard to the child custody matter and the child

20 visitation matter, the objections, the appeal. He's very

21 legally proficient, and he's swamps me with as many

22 motions as some of the best practitioners out there.

23 The motion has no merit whatsoever. Any issue

24 he has will be dealt with -- was dealt with on objections.

25 The objections were denied, and now it's being dealt with

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Proceedings 26

1 on appeal.

MR. KRICHEVSKY: Let me add something, Judge.

THE COURT: What do you want to add?

MR. KRICHEVSKY: The biggest problem I have is

that petitioner is the one that did all this motion

practice, frivolous motion practice, okay. I read from

the Court website, which it says that -- I just like -- I

just went on, you know, on internet, and this is what it

basically says that, if the child was born and lady wasn't

married at this time, I may question paternity because

legally, I'm not the father. That's what --

THE COURT: You had a DNA test, didn't you, sir?

MR. KRICHEVSKY: No, I'm giving you an example.

I'm giving you an example. You accuse me of delaying.

MR. LEVORITZ: With --

MR. KRICHEVSKY: Excuse me, I didn't interrupt

you.

MR. LEVORITZ: With all due respect, I --

THE COURT: Wait, wait. Sir, you're supposed to

respond to what Mr. Levoritz said. Why are we getting

into --

MR. KRICHEVSKY: I'm giving you -- no, no. I

said, the biggest problem I have is that you accuse me of

delaying. In fact, I was not delaying. I offered --

THE COURT: I didn't accuse you of anything.


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Proceedings 27

1 When did I accuse you of anything?

2 - MR. KRICHEVSKY: When Findings of Fact, that you

3 found me, that I was evasive, I was delaying procedure,

4 and that's why you authorized attorney fees against me.

5 In fact, I was trying to do as fast as possible.

6, I offered her mediation. She refused. I offered her

7 private DNA testing. She refused.

8 THE COURT: So, she refused.

9 MR. KRICHEVSKY: No. So, who was delaying this?

10 And finally, finally after six months and

11 thousands of dollars, she agreed. She withdrew her

12 motion. So, why wouldn't I do it from the beginning? So,

13 it was I who was evasive or was she evasive?

14 THE COURT: Well, once again, sir, whatever

15 rulings I made, whatever I ordered, it's all appealable.

16 You're exercising your remedies. So, why don't we let the

17 Appellate Division decide what, if any, errors I made or

18 Judge Hepner made in denying the objection, but as far as

19 recusal goes, I don't see it. I will read the motion.

20 I'll reserve decision. Let's move on.

21 MR. KRICHEVSKY: Move on is what? I need

22 decision because I don't think that you're going to rule

23 fairly -- you know, fairly on that motion either because

24 they - -

25 THE COURT: Well, that's appealable too.


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Proceedings 28

MR. KRICHEVSKY: -- they trying to put me in

prison. They trying -- they know I cannot --

THE COURT: On that issue, sir, are you

requesting an adjournment to either hire or speak to an

attorney on the lady's petition for enforcement?

MR. KRICHEVSKY: Well, you know what, since you

so, basically, you deny my motion to recuse.

THE COURT: I haven't decided yet, but there is

another petition pending, a serious one.

MR. KRICHEVSKY: So, can I adjourn that motion

till my motion is decided, and maybe the other -- another

Judge will rule more favorably, or at least I'm going to

feel I'm little bit more --

THE COURT: What other Judge, sir?

MR. KRICHEVSKY: If you decide to recuse

yourself, my understanding

THE COURT: I got to tell you, I doubt if I'm

going to do it.

MR. KRICHEVSKY: Okay, so, --

THE COURT: So, you're stuck with me, but I told

you, I will read your motion because I haven't seen it

till just this minute. I will rule on it as fairly as I

possibly can, but I don't think it's going to happen

because so far, sir, you haven't proven that I have any

personal interest in the case or any bias against either


Proceedings 29

1 you -- well, personally against you.

2 MR. KRICHEVSKY: How many times does Mr.

3 Levoritz appear in front of you?

4 THE COURT: Before this case, never.

5 MR. KRICHEVSKY: Before my case.

6 THE COURT: Never.

7 MR. KRICHEVSKY: Never, okay.

8 THE COURT: In eleven years, sir, that was his

9 first appearance in this Part. So, what is your point?

10 MR. KRICHEVSKY: No, I just wanted to know.

11 THE COURT: Now you know.

12 MR. KRICHEVSKY: Okay, but I still -- you know,

13 I still don't feel that you're impartial.

14 THE COURT: Well, sir, then I don't know what to

15 tell you.

16 MR. KRICHEVSKY: So, let me then -- if you -- if

17 you deny this motion, let me appeal it. I have my right

18 to appeal your motion -- I mean, your decision.

19 THE COURT: But nobody has to wait for that,

20 sir.

21 MR. KRICHEVSKY: Excuse me?

22 THE COURT: Nobody has to wait for that. You

23 have a petition that is pending that is going to be heard

24 on August 10th. Ms. Svenson has a petition that's

25 calendared for today.


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Proceedings 30

I asked you simply, on her petition for

enforcement, were you asking for an adjournment to either

try to hire an attorney on your own, yes or no, because I

have to move on to other things?

MR. KRICHEVSKY: I move the Court to also have

my modification petition heard today at the same time.

THE COURT: That's not going to happen.

MR. KRICHEVSKY: Why not?

THE COURT: Because I have other cases pending

today.

MR. KRICHEVSKY: It's the same issue. The issue

is the same, facts the same. I cannot pay.

THE COURT: Could you answer my question,

simply. It's a simple question because the next question

I'm going to ask Mr. Levoritz is if his client is seeking

incarceration, and then I'm going to ask you if you want

me to appoint an attorney to represent you free of charge,

and probably both cases and the reserved decision on the

motion will be rescheduled to August 10th, which is only a

couple of weeks away.

MR. LEVORITZ: August 12th, Your Honor.

THE COURT: Whatever.

MR. KRICHEVSKY: All right. So, you planning to

put me in prison?

THE COURT: What?


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Proceedings 31

1 MR. KRICHEVSKY: So, you planning to put me in

2 prison. She's going to ask you to put me in prison

3 because --

4 THE COURT: I'm just telling you the way these

5 things work. You're not an attorney.

6 MR. KRICHEVSKY: Okay.

7 THE COURT: I'm sure this is the first time

8 you've been brought to Court on an enforcement for non-

9 payment of child support. I don't even know that you're

10 not paying child support. So, if you could say I'm

11 planning on putting you in prison, I'm not planning on

12 anything. I'm planning on hearing the evidence and making

13 a decision based on the evidence. How's that?

14 MR. KRICHEVSKY: Okay, then have evidentiary

15 hearing five minutes.

16 THE COURT: Five minutes?

17 MR. KRICHEVSKY: Yes. I mean, whatever evidence

18 they're going to prove that I'm not paying, let it be

19 real.

20 THE COURT: Well, I'm still waiting to hear the

21 answer to my question. Are you going to represent

22 yourself or going to hire an attorney?

23 MR. KRICHEVSKY: Yes, I represent myself.

24 THE COURT: All right. Mr. Levoritz, is your

25 client seeking potential -- well, is she asking for


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Proceedings 32

incarceration as a remedy, potentially?

MR. LEVORITZ: Potentially, yes, Your Honor,

although I'd ask for a full-blown hearing when we come

back on August 12th, in light of the fact that I still do

have to go back IDV.

THE COURT: Right, well, I'm not -- I can't do

it today anyway you look at it.

All right. I'm going to put everything over to

August 12th, sir. On that date, if you feel you need to

have an attorney appointed to represent you free of charge

because they are possibly asking for incarceration, you

let me know and we'll try to find one for you and assign

that attorney to represent you, okay.

MR. KRICHEVSKY: Now, let me ask you something.

VOICE: (Inaudible) as well, Your Honor.

THE COURT: Everything.

VOICE: Thank you.

MR. KRICHEVSKY: So, because I cannot pay, I

should go and rob the bank? I'm on unemployment.

THE COURT: Did I say that?

MR. KRICHEVSKY: No, no. She wants me to --

what I -- I understood --

THE COURT: Why are you asking me these bizarre

questions?

MR. KRICHEVSKY: It's not bizarre --


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Proceedings 33

1 THE COURT: It's bizarre.

2 MR. KRICHEVSKY: -- because you ask him whether

3 she is planning to ask me to go to jail.

4 THE COURT: Because that's one of the things she

5 could ask for.

6 MR. KRICHEVSKY: I understand, and he said,

7 possibly.

8 THE COURT: He said, possibly, which means that

9 your liberty interest is possibly at risk, and possibly I

10 have to assign an attorney to keep you out of jail.

11 MR. KRICHEVSKY: Because she -- because she

12 fired me from my job.

13 THE COURT: You see, sir, now we're getting

14 bizarre again. We'll talk about this all on August the

15 12th.

16 You will have a written decision on the motion.

17 In the unlikely event that I recuse myself, we will have a

18 hearing on all outstanding matters here on that date.

19 Thank you.

20 MR. KRICHEVSKY: So, can I -- can I think that

21 you already -- I didn't understand it clearly. So, --

22 THE COURT: Come back to see me on the 12th.

23 MR. KRICHEVSKY: -- decision is not made on

24 recusing, already made.

25 THE COURT: You will have my decision August


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Proceedings 34

12th.

MR. KRICHEVSKY: Thank you.

THE COURT: Thank you.

MR. LEVORITZ: Your Honor, can we have a p.m.

call that day? Is that possible at all or --

THE COURT: I don't think so. You need an

afternoon on it?

MR. LEVORITZ: If I could, otherwise, I'll

adjourn my case in Staten Island and do things in reverse

or--

THE COURT: I just want to see what my calendar

looks like that day.

VOICE: Your Honor, the A petition is already

scheduled for 9:00 o'clock.

THE COURT: Yes. We'll keep it a morning call.

MR. LEVORITZ: Keep it a morning. Okay, Your

Honor, not a problem.

THE COURT: Thank you.

MR. LEVORITZ: Thank you very much. Have a good

day.

VOICE: Parties are excused.


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6 * * * * * *

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8 I, Dorothy Florentino, certify that the foregoing

9 transcript of proceedings in the Family Court, Kings County, of

10 Elena Svenson v. Michael Krichevsky, Index No. F-28901-08, was

11 prepared using the required transcription equipment and is a

12 true and accurate record of the proceedings.

13

14 Ii

15 Dorothyflorent mo

16Agency Name: ANGIE DePOMPO COURT

17 REPORTING SERVICE86 Kensico Street

18 Staten Island, New York 10306

19Date: September 21, 2010

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JOHN FASONE RECUSAL TRANSCRIPT