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Strachman v. Palestinian Authority

March 30, 2010

DAVID STRACHMAN, AS ADMINISTRATOR OF THE ESTATE OF YARON UNGAR, ET. AL., PLAINTIFFS-RESPONDENTS,
v.
THE PALESTINIAN AUTHORITY, ETC., ET AL., DEFENDANTS, THE PALESTINIAN PENSION FUND FOR THE STATE ADMINISTRATIVE EMPLOYEES OF THE GAZA STRIP, DEFENDANT-APPELLANT.



Defendant The Palestinian Pension Fund for the State Administrative Employees of the Gaza Strip, appeals from an order of the Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 7, 2008, which, insofar as appealed from, denied the motion to strike plaintiffs' demand for a jury trial.

The opinion of the court was delivered by: Catterson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Peter Tom, J.P., Angela M. Mazzarelli, Eugene Nardelli, James M. Catterson, Karla Moskowitz, JJ.

102101/06

The sole issue in this appeal is whether the plaintiffs, judgment creditors of the Palestinian Authority (hereinafter referred to as "PA") and the Palestine Liberation Organization (hereinafter referred to as "PLO"), have a right to a jury trial in a declaratory judgment action. The action seeks to establish the PA's ownership of more than $100 million in securities and debt instruments frozen by Swiss American Securities Inc., (hereinafter referred to as "SASI") in New York. Thus, as set forth below, this Court's task is to find an 1894 analog for a claim of money-laundering designed to interfere with the execution of a judgment.

The plaintiffs are the survivors and the administrator of the estate of United States citizen Yaron Ungar who was murdered with his pregnant wife in a terrorist machine-gun attack in June 1996 in Israel. The plaintiffs alleged that the attack was carried out by members of Hamas acting under the command of the PA and the PLO. In July 2004, the plaintiffs obtained a default judgment against the PA and PLO in an amount of $116,409,123. See Estate of Ungar v. Palestinian Auth., 325 F. Supp. 2d 15 (D. R.I. 2004), aff'd, 402 F.3d 274 (1st Cir. 2005), cert. denied, 546 U.S. 1034 (2005).

In 2005, the federal judgment was domesticated in New York. The federal court issued a restraining order and injunction, and the plaintiffs served information subpoenas and restraining notices pursuant to CPLR 5222 on a number of entities believed to be holding assets of the PA and the PLO. The notices stated that the federal injunction applied to all assets of the PA and the PLO "however titled." In response to the notice, SASI froze more than $100 million in accounts titled variously as the Palestinian Pension Fund for the State Administrative Employees and the Palestinian Pension Fund for the State Administrative Employees of the Gaza Strip.

On or about December 7, 2005, defendant, the Insurance and Pension Fund (hereinafter referred to as "IPF") appeared for the first time and asserted that the names on the account are aliases of the IPF not the PA; and that IPF is an independent entity. IPF moved to moved to vacate the restraining order. The plaintiffs did not respond but instead filed for a turnover proceeding against SASI, and filed a sheriff's levy co-extensive with the proceeding. The plaintiffs further filed this declaratory judgment action seeking a declaration that the assets held by SASI belong to the PA not IPF, and alleging that the PA and the IPF engaged in a fraudulent scheme to prevent the Ungars from enforcing their judgment against the assets frozen by SASI.

In or around March 2006, the court deemed the motion to vacate the restraining notice moot in view of the fact that the plaintiffs had withdrawn it. IPF moved to dismiss the turnover proceeding and the court granted the motion.

Discovery in this declaratory judgment action was completed in February 2007, and the plaintiffs filed a corrected note of issue demanding a trial by jury on all issues. Four months later, on May 30, 2007, defendant Palestinian Pension Fund for the State Administrative Employees of the Gaza Strip (hereinafter referred to as "the Gaza Fund"), moved to strike the plaintiffs' demand for a jury trial*fn1. By decision and order entered May 7, 2008, the court denied the defendant's motion to strike the jury demand.

For the reasons set forth below, we affirm. CPLR 4101 provides for a jury trial in "an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only" or in "any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury."

The declaratory judgment action was unknown at the time of the adoption of the 1894 Constitution which "fr[o]ze" the right to a jury trial to those types of cases in which it was recognized at common law or by statute as of the adoption of the Constitution. See Independent Church of Realization of Word of God v. Board of Assessors of Nassau County, 72 A.D.2d 554, 554, 420 N.Y.S.2d 765, 765 (2nd Dept. 1979).

However, the right to trial by jury is not limited to those instances in which it was used as of 1894 but extends to cases that are analogous to those which were traditionally tried by jury. Id., citing Wynehamer v. People, 13 N.Y. 378, 426 (1856) and Colon v. Lisk, 153 N.Y. 188, 193, 47 N.E. 302, 304 (1897). Hence, as the motion court correctly noted, it is necessary to examine which of the traditional common-law actions would most likely have been used to present the instant claim had the declaratory judgment action not been created. See Siegel, New York Practice, ยง 439; see ...


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