Palestine Monetary Auth. v Strachman
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Palestine Monetary Auth. v Strachman 2005 NY Slip Op 30480(U) December 27, 2005 Sup Ct, NY County Docket Number: 107777/05 Judge: Shirley Werner Kornreich Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 11101200~ SUPREME COURT OF THE STATE OF NEW YORK - N E W j O R K COUNTY MOTION DATE -vMOTION $Ea. NO. The followlng papers, numbrrsd 1 to - read on thh rnotlon tolfor were I Notice of Motion/ Order to Show Cause - Affidavit8 Answering Affidavit8 *m3 - Exhlblts ... PAPERS NUMEERED Ii- LI - Exhibits 1 Replying Affidavits Cross-Motion: 0 Yes 0 No &L&&)h@a& Upon the forogolng papers, It ia ordered that thio motion / , W r/) 4 w Check one: 0 FINAL DISPOSITION ...% NOd I i ' [* 2] SUPREME COURT OF THE STATE OF NE;W Y O K COUNTY OF NEW YORK: PART 54 Plaintiffs, DECISION & ORDER - against - INDEX No.: 107777105 DAVID STRACHMAN, as administrator of the Estate of YARON UNGAR, PROFESSOR MEYER UNGAR, JUDITH WNGAR, RABBI URI DASBERG, JUDITH DASBERG, individually and in their capacity as legal guardians of YISHAl UNGAR & DVIR UNGAR, AMXCHAl UNGAR, DAFNAUNGAR & MICHAEL COHEN, & THE BANK OF NEW YORK, Defendants. X r _ _ - l _ - - * - - " _ - " _ - - - - _ _ I _ _ _ c _ _ _ r _ _ l _ _ _ r _ _ - - THE ESTATE OF YARON UNGAR, by and through the administrator of his Estate, DAVID STRACHMAN, PROFESSOR MEYER UNGAR, JUDITH UNGAR, RABBI URI DASBERG, JUDITH DASBERG, individually and in their capacity as legal guardians of MSHAI TJNGAR&DVlRUNGAFL,AMICHAIUNGAR,DAFNA UNGAR & MICHAEL COHEN, - against - INDEX No.:105521/05 THE PALESTIMAN AUTHORITY, a/k/a, THE PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORlTY, THE PALESTINE LIBERATION ORGANIZATION, YASSER ARAFAT, JlBRlL RAJOUB, MUHAMMED DAHLAN, AMIN AL-HTNDI, TAWIK TIRAWI, RAZI JAEALI, HAMAS-ISLAMIC RESISTANCE MOVEMENT, ma, HARAKAT AL-MUQAWAMA AL-ISLAMIYYA, ABDEL RAHMAN ISMAIL ABDEL R4HMAN GHANIMAT, JAMAL ABDEL FATAH TZABICH AL HOR,RAED FAKHRI AJ3U HAMDWA, IBRAHIM GHANIMAT, & M N MAHMLTD HASSAN FUAD KAFISHE, A X KORNREICH, J.: _ _ _ _ r _ _ " " _ _ _ l _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l _ _ _ _ r - - 1 [* 3] On October 14,2005, the Court i s m 4 an order, inter alia, granting plaintiffs application for release of the block on their funds, held in The Bank of New York ( BNY ), and directing BNY *Yo honor all pending and future incoming and outgoing transactions by plaintiff*upon the condition that plaintiff post an undertaking in the amount of $30,000,000. Plaintiff, now, moves to vacate the order directing the posting of an undcrtaking or, in the alternativa, for a reduction in the amount of the undertaking. By stipulation of the parties, the suspension and time to post thc undcrtaking has been axtended to 15 days after service of this decision/ordtr wilh notice of entry. In support of its application, plaintiff argues that the Court, by its previous decision, has found that plaintiff ( TMA ) no interest i the restrained funds. Moreover, it contends that had n the amount of the undertaking is unreasonable,because the damages secured by the undertaking are far less than $30,000,000.Also, it argues that it would be a hardship for PMA to post the undertaking. Specifically, PMA contends that, due to the nature of the r s involved, only two ik sureties were willing to extend a bond to it, that both required collateralization, and that thc cost would exceed $300,000 annually. Defendants oppose the motion. First, they point out that the Court s October findings were not dispositive but, merely, were made i determining the request for and granting of the n preliminary injunction. Additionally, defendants offer to agree to the PMA s postjng the undertaking in an interest-bearing escrow account. Finally, they argue that the cost of tho undertaking reflects the risk the PMA poses, that the PMA has the funds to post the bond set, that the amount is required to protect BNY, the stakeholder, from a Federal civil contempt ruling in the amount of $30,000,0OO, and that reducing the bond would change the status quo. 2 [* 4] The Court ¬ b t notes that its prior findings of fact as to the preliminary injunction, were not preclusive, in that the matter w s not h l l y decided. Rather, further discovery was ordered a so that defendants could investigate the two questions Judge LcGueux, the Federal Court judge who issued the injunction blocking the funds, and the Court ruled were dispositive of the injunction requested by PMA to lift the block - whether PMA was the alter ego of the Palestinian Authority (( PA ) and whether any of the funds belonged to the PA or the PLO ( Palistinian Liboration Organization ). Diecowry might reault i further proceedings and other findings. n Nor is the amount of the ordered undertaking unreasonable or beyond the resources of PMA. The hearing evidence demonstrated that approximately $18,000,000was held by BNY in the suspense account. Two transactions amounting to $12,000,000, however, were also suspended; due to insufficient funds the money was not frozen. But, once finds in that amount are made available, something which would happen in the normal course, the $12,000,000 would be placed in the suspense account. Moreover, plaintiff presented evidence demonstrating that PMA has nearly $40,000,000 in its capitalheserve account. It, thus, has the finds to obtain the ordered undertaking. Accordingly, it is ORDERED that plaintiffs motion to vacate or reduce the $30,000,000 undertaking ordered by the Court, is denied, and it is further ORDERED that the C of this decision/order with no Dated: December 27,2005 New York, New York 3
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