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United States District Court

Easter District of New York

THE SEA GATE ASSOCIATION; Civil Action No.


Plaintiff, CV18-3408
-against-
Michael Krichevsky,
Defendant.

Michael Krichevsky,
Third Party Plaintiff,
-against-
Alan J. Wohlberg, et al
Third Party Defendants.

NOTICE OF MOTION

COUNSELORS:

PLEASE TAKE NOTICE,that upon the annexed affidavit of Michael Krichevsky and

memorandum of law in support of his motion to Disqualify Honorable Kiyo A.

Matsumoto, USDJ pursuant to 28 USC §§144 and 455(a). The hearing will be held by

Assigned Judge of this Court at the Courthouse located at 255 Cadman Plaza East, at

Courtroom assigned later, on the day assigned later, 2018, at time assigned thereafter, and

for such other and further relief as to this Court seems just and proper.

TAKE FURTHER NOTICE that, pursuant to FRCP, all answering papers, if any, shall

be served at least seven (7)days before the return date of this motion.

Dated: Brooklyn, New York


November 2, 2018

Under duress, all rights reserved, Michael Krichevsky, sui juris


4221 Atlantic Ave
Brooklyn, NY 11224
718-687-2300
United States District Court
Easter District of New York

THE SEA GATE ASSOCIATION; Civil Action No.


Plaintiff, CV18-3408
-against-
N4ichael Krichevskv
j>

Defendant.

Michael Krichevsky,
Third Party Plaintiff,
-against-
Alan J. Wohlberg, et al
Third Party Defendants.

AFFIDAVIT IN SUPPORT OF MOTION TO DISQUALIFY

MICHAEL KRICHEVSKY,Pro Se, under penalty of perjury says:


1. I am the plaintiff in the within action. I make this timely Affidavit of Bias and Prejudice
in support of the within motion to disqualify per 28 USC §§144 and 455(a).
PROCEEDURAL FACTS AND HISTORY

3. I adopt by reference herein all the facts, procedural history and objections in my affidavit in
opposition to Wohlberg's motion to remand,(Docket #14)and in supplemental affidavit,
(Docket #15).

4. In 10, 11, and 24 - 26 offirst affidavit, I objected and challenged Wohlberg's conflict of
interest and other violations of NYRPC.

5. In his reply, he deliberately failed to deny existence of conflict of interest and deliberately
failed to recuse himselffrom representing alleged plaintiff and his co-defendant SEAGATE.
6. In t ^ 17 and 18,1 objected to Judge Matsumoto's order authorizing Wohlberg to file motion
for remand and advising him to seek attorney fees against me while she knew that conflict of
interest exists. As such, she acted ultra vires since she knew or should have known that Wohlberg

was not authorized to file anything in the court by operation of law governing lawyer's practice.

7. During July 26, 2018 phone conference, Karen M. Lager, Esq.(Lager) notified judge

Matsumoto that she and her law firm MARKS,O'NEILL, O'BRIEN,DOHERTY & KELLY,

PC.(FIRM)represent third party defendants David Wynn, Manny Papir, Richard Scarpaci, Pinny

Dembitzer, Barbara Garofalo, Solomon Zicherman, Merrie Starr-Caputo, Bernard Kaufman, Jack

Suben, Betty Baranoff, Jeanne Rice, Tamir Kovach, Ivette Cirino, Vincent Cirino, Irene

Sarafanov, Yuriy Krasner, Lance Bums, Heniy Grunbaum, Kurt Vikki, Jack Weidhom, Doe 1 -

10 unknown or unidentified members and/or agents of SEAGATE. As such,judge Matsumoto

knew or should have known that there is egregious conflict of interest in the representation of

these people.

8. Judge Matsumoto knew or should have known that both Lager and FIRM disqualified from
representing third party defendants due to common law conflict of interest and per RULE 1.10,

RULE 1.7 and RULE 3.7 of NYRPC that says:

Imputation of Conflicts of Interest


(a) While lawyers are associated in a firm, none of them shall knowingly
represent a client when any one ofthem practicing alone would be prohibited
from doing so by Rule 1.7, 1.8 or 1.9. [emphasis mine]
RULE 1.7:
Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if
a reasonable lawyer would conclude that either:
(1)the representation will involve the lawyer in representing differing
interests; or
(2)there is a significant risk that the lawyer's professional judgment on
behalf of a client will be adversely affected by the lawyer's own financial,
business, property or other personal interests.
(b)Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1)the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2)the representation is not prohibited by law;
(3)the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4)each affected client gives informed consent, confirmed in writing.
RULE 3.7:
Lawyer As Witness
(a) A lawyer shall not act as advocate before a tribunal in a matter in which the
lawyer is likely to be a witness on a significant issue offact unless:
(1)the testimony relates solely to an uncontested issue;
(2)the testimony relates solely to the nature and value of legal services rendered
in the matter;
(3) disqualification of the lawyer would work substantial hardship on the client;
(4)the testimony will relate solely to a matter of formality, and there is no reason
to believe that substantial evidence will be offered in opposition to the testimony;
or

(5)the testimony is authorized by the tribunal.


(b) A lawyer may not act as advocate before a tribunal in a matter if:
(1)another lawyer in the lawyer's firm is likely to be called as a witness on a
significant issue other than on behalf of the client, and it is apparent that the
testimony may be prejudicial to the client; or
(2)the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.[emphasis
mine]

9. When 1 objected to Wohlberg's conflict of interest, 1 expected that Lager would notice her

own conflict and take corrective action by filing wavers of conflict of interest from all 20

clients. Unfortunately it did not happen.

10. When Lager told Judge Matsumoto that she represents several clients, 1 expected that "lights

and sirens will go off in judge's mind" and Judge Matsumoto would inquire about attorneys'

misconducts of failure to file wavers and take appropriate action as in Bulloch v. United

States, 763 F.2d, where the court held the following:

"court may investigate a question as to whether there was fraud in the procurement of
a judgment. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575,66 S.Ct.
1176,90 L.Ed. 1447. This is to be done in adversary proceedings as in the case before
us. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,64 S.Ct. 997, 88
L.Ed. 1250;
1 1. In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246,64 S.Ct. 997, 88 L.Ed.

1250(1944) the court stated:

"[T]ampering with the administration ofjustice involves far more than an injury
to a single litigant. It is a wrong against the institutions set up to protect and
safeguard the public, institutions in which fraud cannot complacently be tolerated
consistently with the good order of society."

12. 1 suffered a stroke in 2010 and pursuant to Federal Law - Americans with disabilities act

(ADA)is disabled person. Pursuant to rules of civility. Judge Matsumoto should have given me

necessary time to prepare opposition. Instead, she rushed me into judgment by denying my

request for motion for more definite statement and not allocating me time to make Rule 11

motion against all attorneys involved.

13. These proceedings are far from professional, courteous and civilized.

Controlling Law For Disqualification

14. Section 455(a) of28 U.S.C. provides as follows: Any justice,judge, or magistrate judge of

the United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned. In 1994, the U.S. Supreme Court held that:

"Disqualification is required if an objective observer would entertain reasonable


questions about the judge's impartiality. If a judge's attitude or state of mind leads
a detached observer to conclude that a fair and impartial hearing is unlikely, the
judge must be disqualified." Liteky v. U.S., 114 S.Ct. 1147, 1162(1994)

15. Chief Justice Rehnquist in his statement in Microsoft Corp. v. United States, 530 U. S. 1301,

1302(2000) reaffirmed the standard for interpreting and applying this section:

"Section 455(a) contains the more general declaration that a Justice "shall
disqualify himself in any proceeding in which his impartiality might reasonably be
questioned." 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)."[Emphasis added]
16. Section 144 provides that "[w]henever a party to any proceeding in a district court makes and
tiles a timely and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to hear such proceeding."

17. All attorneys involved and Judge Matsumoto in concert railroading my case by violating my

constitutional right to petition government for redress of grievances. In re International Business

Machines Corp.,618 F. 2d 923 - Court of Appeals,2nd Circuit(1980)judge stated:

"Moreover, the constitutional right is independent from those conferred by § 144


and § 455, and may well force recusal in instances where the statutes are not
technically applicable. See United States v. Sciuto, 531 F.2d 842, 845 (7th Cir.
1976); United States v. Conforte, supra, 457 F.Supp. at 659. Yet it was to protect
this guarantee that the recusal statutes were enacted, Wright, Miller & Cooper,
supra, § 3541, at 343, and it would be anomalous to hold that a claim under the
statutes insufficient on its merits could nevertheless satisfy the constitutional
standard. We agree with the District of Columbia Circuit that anything impinging
on the constitutional right "would have more readily violated § 144 and § 455."
United States v. Haldeman, supra, 181 U.S.App.D.C. at 559 n.276, 559 F.2d at
130 n.276; see United States v. Conforte, supra, 457 F.Supp. at 659 n.l3."

ARGUMENTS

18. Attorney licensed to practice law in Federal Court must be really bold and sure that s/he will

not be held in Contempt of Court or reported to Grievance Committee for the above-mentioned

violation of LAW GOVERNING LAWYERS.

19. All attorneys involved had to be sure that s/he will not be ordered to pay my legal fees for

such unauthorized appearance and frivolous motion practice as per 28 USC,§ 1927 of

JUDICIARY AND JUDICIAL PROCEDURE. Violation of FRCP rule 11(b) provides for

sanctions per Rule 11(c)(3). On Court's initiative. Judge Matsumoto could have ordered

penalties and damages per Rule 11(c)(4). Unfortunately, it did not happen.

20. This attorneys' "boldness" to violate NYRPC leads me believe that all attorneys involved in

cahoots with Judge Matsumoto and that they conspired to railroad my case. All attorneys

involved deliberately fail to rebut my objections in all affidavits as to not create fraudulent or

perjurious statement on the record for future litigation. Similarly, Judge Matsumoto deliberately
silent on the record so as not to produce any appealable record for me. This is whatjudge stated

about attorneys fraud in H.K. Poricr Co.. Inc. r. Goodyear Tire & Rubber Co., 536 F.2d 1115
(6th Cir. 1976):

"Since attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court. Kupferman v. Consolidated Research & Mfg. Corp.,
459 F.2d 1072, 1078(2d Cir. 1972); see Restatement,.judgments § 126 comment
c(Supp.l948)."

21. This is what judge eloquently stated about fraud on the court in regard to attorney or judge in
Bulloch V. United States, 721 F. 2d 713:

"It is thus fraud where the court or a member is connapted or influenced or


influence is attempted or where the judge has not performed his judicial
function-thus where the impartial functions of the court have been directly
corrupted.[Emphasis added]

22. Here is another eloquent statement:

"Fraud upon the court" in the context of Rule 60(b)addresses "that species of
fraud which does or attempts to. defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases presented for adjudication."
Transaero, Inc. v. La Fuerza Area Boliviana, 24 F. 3d 457

23. Judge Matsumoto has Disciplinary Responsibility and Duty to Report Ethical Misconduct

of attorneys' violations of New York Rules of Professional Conduct, but failed to do so and

engaged in cover-up ofthese violations by permitting Lager and Wohlberg to file unlawful

and unauthorized by clients declarations and Wohlberg's motion to remand on his behalf.

24. Lager and FIRM, per RULE 1.10 of NYRPC. have no authority for simultaneous

representation of all third party defendants due to conflict of interests, which would lead to

finger pointing of defendants against each other, please, see Mercado v. City ofNew York,

2010 WL 3910594(S.D.N.Y. Sept. 30. 2010). In this action. Magistrate Judge Pitman "'noted

that the individual defendants had submitted written waivers of the potential conflicts."
25. 1 believe that Judge Matsumoto's order would be void because the court lost subject matter

jurisdiction and lacked personal jurisdiction over all Defendants. If I win this lawsuit, anyone of

the 20 defendants will be able to void judgment or order of this court based on this jurisdictional

defect - claiming that they never authorized Wohlberg and/or Lager to file motion to remand or

anything for them and that there was conflict of interest which they did not know about and were

never told. Any defendant will apply Rule 60(b)to void any judgment or order.

26. 1 reasonably believe that Judge Masunioto is biased and prejudiced against me at least as Pro

Se litigant. Together with all attorneys involved, she is playing a game "us lawyers against me
Pro Se."

27. Judge Matsumoto violated ABA and NYSBA Code of Judicial Conduct:

CANON 1 (§100.1 j: A JUDGE SHALL UPHOLD THE INTEGRITYAND INDEPENDENCE OF THE


JUDICIARY.
An independent and honorable judiciary is indispensable to justice in our society. A judge should
participate in establishing, maintaining and enforcing high standards of conduct, and shall personally
observe those standards so that the integrity and independence of the judiciary will be preserved. The
provisions of this Part 100 are to be construed and applied to further that objective.
CANON 2|§I00.2|: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES.
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary. A judge shall not lend the prestige of judicial
office to advance the private interests of the judge or others; nor shall a judge convey or permit others
to convey the impression that they are in a special position to influence the judge
CANON 3|§I00.3|: A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY
AND DILIGENTLY.
Judicial duties in general.
The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial
duties include all the duties of the judge's office prescribed by law. In the performance of these duties,
the following standards apply.
(B)(1) A judge shall be faithful to the law and maintain professional competence in it.
(3) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with
whom the judge deals in an official capacity, and shall require similar conduct of lawyers and of staff,
court officials and others subject to the judge's direction and control.
(4) A judge shall perform judicial duties without bias or prejudice against or in favor of any person. A judge
in the performance of judicial duties shall not, by words or conduct, manifest bias or prejudice,
including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual
orientation, religion, national origin, disability, marital status or socioeconomic status, and shall require
staff, court officials and others subject to the judge's direction and control to refrain from such words
or conduct.
(5) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by
words or conduct, bias or prejudice based upon age, race, creed, color, sex,sexual
orientation, reiigion, nationai origin, disability, marital status or socioeconomic status, against
parties, witnesses, counsel or others.
(6) A judge shall accord to every person who has a legal interest in a proceeding, or that person's
lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex
parte communications, or consider other communications made to the judge outside the presence of
the parties or their lawyers concerning a pending or impending proceeding, except:
(7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
(D) Disciplinary responsibilities.
(2) A judge who receives information indicating a substantial likelihood that a lawyer has
committed a substantial violation of the Code of Professional Responsibility shall take
appropriate action.
(3) Acts of a judge in the discharge of disciplinary responsibilities are part of a judge's judicial
duties.
(E) Disqualification.
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned, including but not limited to instances where:
(i) the judge has a personal bias or prejudice concerning a party or
(ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;

CONCLISION

28. If deliberate failure to rebut my both affidavits does not constitute Fraud upon The Court and

violations of Code of Judicial Conduct are not evidence of bias and prejudice, then what is?

There is none.

29. 1 reasonably believes that fair due process by Judge Matsumoto is impossible.

30. Fraud upon the Court makes void 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. The order is void ab initio see Vallely v.
Northern Fire & Marine Ins. Co.. 254 U.S. 348, 41 S.Ct. 116(1920). Particularly when "a judge

himself is a party to the fraud," Cone v. Harris(Okl. 1924), 230 P. 721, 723. Windsor v.

McVeigh (1876). 93 US 276, 23 Led 914. 918.

31. A Judge who stands in the way ofjustice and the law is acting outside of all judicial

authority, lacks jurisdiction and thereby waives her rights to immunity from civil liability. The

14th Amendment guarantees the fundamental rights of People to Due Process and such rights

require strict scrutiny of the Court.


Wlierefore, in light of the fact that Judge Matsumoto did not perform her duty as mandated by the

Constitution and the Law, I respectfully move the Court to Disqualify/Recuse herself.

Dated: Brooklyn, New York


November 2, 2018

Under duress, all^ights reserved, Michael Knchevsky,sui juris


4221 Atlantic Ave
Brooklyn, NY 11224
718-687-2300

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