rot v. bank of china
DESCRIPTION
The families of Israeli students, murdered in a 2008 terror attack, filed today (Oct. 23, 2012) a billion-dollar lawsuit against the Bank of China (BOC) for intentionally providing banking services to Hamas through their New York City branch. "The banking giant knowingly assisted the Islamic group to carry out this Jerusalem attack with the full approval of the Chinese government," this according to their attorney, Nitsana Darshan-Leitner, director of Shurat HaDin – Israel Law Center.The lawsuit, which was brought to the New York State Supreme Court, is on behalf of five families who lost loved ones in the shooting attack. The suit, Rot v. Bank of China, seeks compensatory and punitive damages for the victims.On March 6, 2008, a member of the Islamic terrorist organization entered the Mercaz HaRav Yeshiva in Jerusalem and opened fire on hundreds of students with an Ak-47 assault rifle. Eight high school and seminary students were murdered and many others were wounded.TRANSCRIPT
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JACOB ROT, individually, as personal representative of the
Estate of Roi Aharon Rot, and as the natural guardian of
plaintiffs Dvir Rot, a minor, and Daniel Rot, a minor; ORLY
ROT, individually, as personal representative of the Estate of Roi
Aharon Rot, and as the natural guardian of plaintiffs Dvir Rot, a
minor, and Daniel Rot, a minor; DVIR ROT, a minor, by his
natural guardians Jacob Rot and Orly Rot; DANIEL ROT, a
minor, by his natural guardians Jacob Rot and Orly Rot; ARIE
ROT; MAAYAN ROT; ELISHAV AVIHAIL, individually, as
personal representative of the Estate of Segav Pniel Avihail, and
as the natural guardian of plaintiffs Yfah Atara Avihail, a minor,
Shahak Eitam Avihail, a minor, and Liat Batia Avihail, a minor;
MORIA AVIHAIL, individually, as personal representative of
the Estate of Segav Pniel Avihail, and as the natural guardian of
plaintiffs Yfah Atara Avihail, a minor, Shahak Eitam Avihail, a
minor, and Liat Batia Avihail, a minor; YFAH ATARA
AVIHAIL, a minor, by her natural guardians Elishav Avihail
and Moria Avihail; SHAHAK EITAM AVIHAIL, a minor, by his
natural guardians Elishav Avihail and Moria Avihail; LIAT
BATIA AVIHAIL, a minor, by her natural guardians Elishav
Avihail and Moria Avihail; ITZHAK COHEN, individually, as
personal representative of the Estate of Nerya Cohen, and as the
natural guardian of plaintiffs Tamar Cohen, a minor, Efrat
Cohen, a minor, Nahama Cohen, a minor, Benaya Cohen, a
minor, and Moriya Cohen, a minor; AYALA COHEN,
individually, as personal representative of the Estate of Nerya
Cohen and as the natural guardian of plaintiffs Tamar Cohen, a
minor, Efrat Cohen, a minor, Nahama Cohen, a minor, Benaya
Cohen, a minor, and Moriya Cohen, a minor; TAMAR COHEN,
a minor, by her natural guardians Itzhak Cohen and Ayala
Cohen; EFRAT COHEN, a minor, by her natural guardians
Itzhak Cohen and Ayala Cohen; NAHAMA COHEN, a minor,
by her natural guardians Itzhak Cohen and Ayala Cohen;
BENAYA COHEN, a minor, by his natural guardians Itzhak
Cohen and Ayala Cohen; MORIYA COHEN, a minor, by her
natural guardians Itzhak Cohen and Ayala Cohen; ACHITUV
COHEN; MERAV QUINT; YEHOYADA COHEN; ORIT LAIK;
EDUT COHEN; HADAS SHARHABY; DROR ELDAR,
individually, as personal representative of the Estate of Yonatan
Yitzchak Eldar, and as the natural guardian of plaintiffs Yishai
Eldar, a minor, and Gilad Eldar, a minor; AVITAL ELDAR,
individually, as personal representative of the Estate of Yonatan
Index No: / 12
Date Purchased: 10 / 23 / 12
Plaintiffs designate NEW YORK
County as the place of trial. The basis
of venue is residence of all the
Defendants parties and location of
their property.
SUMMONS
Plaintiffs reside at:
c/o Nitsana Darshan-Leitner, Adv.
10 Hata’as Street
Ramat Gan, 52512, Israel
FILED: NEW YORK COUNTY CLERK 10/23/2012 INDEX NO. 157475/2012
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/23/2012
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Yitzchak Eldar, and as the natural guardian of plaintiffs Yishai
Eldar, a minor, and Gilad Eldar, a minor; DAVID SHILO
ELDAR; YAIR ASHER ELDAR; DVORA GILADI; YEHUDA
ELDAR; DANIEL ELDAR; YISHAI ELDAR, a minor, by his
natural guardians Dror Eldar and Avital Eldar; GILAD ELDAR,
a minor, by his natural guardians Dror Eldar and Avital Eldar;
TUVIA LIFSHITS, individually, as personal representative of the
Estate of Yochay Lifshits, and as the natural guardian of
plaintiffs Amichay Lifshits, a minor, Avishay Lifshits, a minor,
and Amitay Lifshits, a minor; TSOFIA PNINA LIFSHITS,
individually, as personal representative of the Estate of Yochay
Lifshits, and as the natural guardian of plaintiffs Amichay
Lifshits, a minor, Avishay Lifshits, a minor, and Amitay Lifshits,
a minor; AMICHAY LIFSHITS, a minor, by his natural
guardians Tuvia Lifshits and Tsofia Pnina Lifshits; AVISHAY
LIFSHITS, a minor, by his natural guardians Tuvia Lifshits and
Tsofia Pnina Lifshits; AMITAY LIFSHITS, a minor, by his
natural guardians Tuvia Lifshits and Tsofia Pnina Lifshits;
ELYASAF LIFSHITS; and RIVKA LIFSHITS,
Plaintiffs,
-against-
BANK OF CHINA LIMITED; BANK OF CHINA, NEW YORK;
BOARD OF DIRECTORS, BANK OF CHINA LIMITED; BOARD
OF SUPERVISORS, BANK OF CHINA LIMITED; BOARD OF
DIRECTORS, BANK OF CHINA, NEW YORK; PRESIDENT,
BANK OF CHINA, NEW YORK, in his professional capacity;
CHAIRMAN, BANK OF CHINA, NEW YORK, in his
professional capacity, BRANCH MANAGER, BANK OF
CHINA, NEW YORK, in his professional capacity,
Defendants.
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TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a
copy of your answer, on the plaintiff’s Attorneys within 20 days after the service of this summons,
exclusive of the day of service (or within 30 days after service is complete if this summons is not
personally delivered to you within the State of New York) and to file a copy of your answer with the
Clerk of the above-named Court; and in case of your failure to appear or answer, judgment will be taken
against you by default for the relief demanded in the complaint.
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Dated: Brooklyn, New York
October 23, 2012
Yours,
THE BERKMAN LAW OFFICE, LLC
Attorneys for the plaintiff
by:
Robert J. Tolchin
111 Livingston Street, Suite 1928
Brooklyn, New York 11201
(718) 855-3627
Defendants’ addresses:
SEE ATTACHED RIDER
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RIDER
Defendants’ addresses:
BANK OF CHINA LIMITED
410 Madison Avenue
New York, New York 10017
BANK OF CHINA, NEW YORK
410 Madison Avenue
New York, New York 10017
BOARD OF DIRECTORS, BANK OF CHINA LIMITED
410 Madison Avenue
New York, New York 10017
BOARD OF SUPERVISORS, BANK OF CHINA LIMITED
410 Madison Avenue
New York, New York 10017
BOARD OF DIRECTORS, BANK OF CHINA, NEW YORK
410 Madison Avenue
New York, New York 10017
PRESIDENT, BANK OF CHINA, NEW YORK
410 Madison Avenue
New York, New York 10017
CHAIRMAN, BANK OF CHINA, NEW YORK
410 Madison Avenue
New York, New York 10017
BRANCH MANAGER, BANK OF CHINA, NEW YORK
410 Madison Avenue
New York, New York 10017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JACOB ROT, individually, as personal representative
of the Estate of Roi Aharon Rot, and as the natural
guardian of plaintiffs Dvir Rot, a minor, and Daniel
Rot, a minor; ORLY ROT, individually, as personal
representative of the Estate of Roi Aharon Rot, and as
the natural guardian of plaintiffs Dvir Rot, a minor,
and Daniel Rot, a minor; DVIR ROT, a minor, by his
natural guardians Jacob Rot and Orly Rot; DANIEL
ROT, a minor, by his natural guardians Jacob Rot and
Orly Rot; ARIE ROT; MAAYAN ROT; ELISHAV
AVIHAIL, individually, as personal representative of
the Estate of Segav Pniel Avihail, and as the natural
guardian of plaintiffs Yfah Atara Avihail, a minor,
Shahak Eitam Avihail, a minor, and Liat Batia Avihail,
a minor; MORIA AVIHAIL, individually, as personal
representative of the Estate of Segav Pniel Avihail, and
as the natural guardian of plaintiffs Yfah Atara
Avihail, a minor, Shahak Eitam Avihail, a minor, and
Liat Batia Avihail, a minor; YFAH ATARA AVIHAIL,
a minor, by her natural guardians Elishav Avihail and
Moria Avihail; SHAHAK EITAM AVIHAIL, a minor,
by his natural guardians Elishav Avihail and Moria
Avihail; LIAT BATIA AVIHAIL, a minor, by her
natural guardians Elishav Avihail and Moria Avihail;
ITZHAK COHEN, individually, as personal
representative of the Estate of Nerya Cohen, and as the
natural guardian of plaintiffs Tamar Cohen, a minor,
Efrat Cohen, a minor, Nahama Cohen, a minor, Benaya
Cohen, a minor, and Moriya Cohen, a minor; AYALA
COHEN, individually, as personal representative of
the Estate of Nerya Cohen and as the natural guardian
of plaintiffs Tamar Cohen, a minor, Efrat Cohen, a
minor, Nahama Cohen, a minor, Benaya Cohen, a
Index No: ___________ / 12
VERIFIED COMPLAINT
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minor, and Moriya Cohen, a minor; TAMAR COHEN,
a minor, by her natural guardians Itzhak Cohen and
Ayala Cohen; EFRAT COHEN, a minor, by her natural
guardians Itzhak Cohen and Ayala Cohen; NAHAMA
COHEN, a minor, by her natural guardians Itzhak
Cohen and Ayala Cohen; BENAYA COHEN, a minor,
by his natural guardians Itzhak Cohen and Ayala
Cohen; MORIYA COHEN, a minor, by her natural
guardians Itzhak Cohen and Ayala Cohen; ACHITUV
COHEN; MERAV QUINT; YEHOYADA COHEN;
ORIT LAIK; EDUT COHEN; HADAS SHARHABY;
DROR ELDAR, individually, as personal
representative of the Estate of Yonatan Yitzchak Eldar,
and as the natural guardian of plaintiffs Yishai Eldar, a
minor, and Gilad Eldar, a minor; AVITAL ELDAR,
individually, as personal representative of the Estate of
Yonatan Yitzchak Eldar, and as the natural guardian of
plaintiffs Yishai Eldar, a minor, and Gilad Eldar, a
minor; DAVID SHILO ELDAR; YAIR ASHER ELDAR;
DVORA GILADI; YEHUDA ELDAR; DANIEL
ELDAR; YISHAI ELDAR, a minor, by his natural
guardians Dror Eldar and Avital Eldar; GILAD
ELDAR, a minor, by his natural guardians Dror Eldar
and Avital Eldar; TUVIA LIFSHITS, individually, as
personal representative of the Estate of Yochay
Lifshits, and as the natural guardian of plaintiffs
Amichay Lifshits, a minor, Avishay Lifshits, a minor,
and Amitay Lifshits, a minor; TSOFIA PNINA
LIFSHITS, individually, as personal representative of
the Estate of Yochay Lifshits, and as the natural
guardian of plaintiffs Amichay Lifshits, a minor,
Avishay Lifshits, a minor, and Amitay Lifshits, a
minor; AMICHAY LIFSHITS, a minor, by his natural
guardians Tuvia Lifshits and Tsofia Pnina Lifshits;
AVISHAY LIFSHITS, a minor, by his natural
guardians Tuvia Lifshits and Tsofia Pnina Lifshits;
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AMITAY LIFSHITS, a minor, by his natural guardians
Tuvia Lifshits and Tsofia Pnina Lifshits; ELYASAF
LIFSHITS; and RIVKA LIFSHITS,
Plaintiffs,
-against-
BANK OF CHINA LIMITED; BANK OF CHINA,
NEW YORK; BOARD OF DIRECTORS, BANK OF
CHINA LIMITED; BOARD OF SUPERVISORS, BANK
OF CHINA LIMITED; BOARD OF DIRECTORS,
BANK OF CHINA, NEW YORK; PRESIDENT, BANK
OF CHINA, NEW YORK, in his professional capacity;
CHAIRMAN, BANK OF CHINA, NEW YORK, in his
professional capacity, BRANCH MANAGER, BANK
OF CHINA, NEW YORK, in his professional capacity,
Defendants.
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Plaintiffs, complaining of the defendants, by and through their attorneys,
THE BERKMAN LAW OFFICE, LLC, alleges for their complaint, upon information and
belief, as follows:
INTRODUCTION
1. This is a civil action for wrongful death and related damages
arising from a terrorist shooting carried out by the Hamas terrorist organization on
March 6, 2008, at the Mercaz Harav Yeshiva in Jerusalem, Israel (“Terrorist Shooting”).
2. The Terrorist Shooting was carried out by Hamas.
3. The Terrorist Shooting was materially supported by Defendants
Bank of China Limited; Bank of China, New York; Board of Directors of Bank of China
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Limited; Board of Supervisors of Bank of China Limited; Board of Directors, Bank of
China, New York; and the Individual Defendants (President, Bank of China, New York;
Chairman of the Bank Of China, New York; and Branch Manager, Bank Of China, New
York) (together, “Defendants”).
4. Defendants provided extensive banking services to the Hamas.
Those banking services caused, enabled and/or facilitated the terrorist attacks in which
the plaintiffs and the decedents were harmed and killed.
5. Decedents Roi Aharon Rot, 18 years-old, Segav Pniel Avihail, 15
years-old, Nerya Cohen, 15 years-old, Yonatan Yitzchak Eldar, 16 years-old and Yochay
Lifshits, 18 years-old, were all murdered in the Terrorist Shooting.
JURISDICTION AND VENUE
6. The Defendants conduct business in New York.
7. The Defendants conducted numerous transactions in New York
that are the subject of this litigation.
8. The Defendants own and/or control real property in New York.
9. This Court has personal jurisdiction over the Defendants pursuant
to CPLR § 301 and/or CPLR § 302(a)(1), (a)(4).
10. This Court, a court of general jurisdiction, has subject matter
jurisdiction over this action.
11. Venue is proper in this county pursuant to CPLR § 503(c).
12. This forum is an appropriate one for this action in light of the
Defendants’ significant New York presence, real estate, business activities and
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transactions, and their purposeful availment of the laws and protections of the State of
New York.
PARTIES
13. All Plaintiffs are, and at all times mentioned herein were, citizens
and domiciliaries of the State of Israel.
14. Plaintiffs rely upon the laws and protections of the State of Israel.
Pursuant to the laws of the State of Israel, they are able to bring the Defendants to
justice and to gain recovery for the Defendants illegal and negligence actions and
inactions. They bring this action in New York because they do not believe that the
courts of Israel have personal jurisdiction over the Defendants.
15. All decedents were, at the time of their deaths, citizens and
domiciliaries of the State of Israel.
16. Plaintiffs Jacob Rot and Orly Rot are the parents of decedent Roi
Aharon Rot. They bring this action and all relevant claims individually, on behalf of the
estate of Roi Aharon Rot, and as natural guardians of their minor children, plaintiffs
Dvir Rot and Daniel Rot.
17. Plaintiffs Jacob Rot and Orly Rot are authorized by the provisions
of Part 5 of the State of Israel’s Inheritance Law, 5725-1965, (“Inheritance Law”) to bring
this action on behalf of the Estate of Roi Aharon Rot.
18. Plaintiffs Dvir Rot, Daniel Rot, and Arie Rot are the brothers of
decedent Roi Aharon Rot.
19. Plaintiff Maayan Rot is the sister of decedent Roi Aharon Rot.
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20. Plaintiffs Elishav Avihail and Moria Avihail are the parents of
decedent Segav Pniel Avihail. They bring this action and all relevant claims
individually, on behalf of the estate of Segav Pniel Avihail, and as natural guardians of
their minor children, plaintiffs Yfah Atara Avihail, Shahak Eitam Avihail and Liat Batia
Avihail.
21. Plaintiffs Elishav Avihail and Moria Avihail are authorized by the
provisions of Part 5 of the Inheritance Law to bring this action on behalf of the Estate of
Segav Pniel Avihail.
22. Plaintiffs Yfah Atara Avihail and Liat Batia Avihail are the sisters of
decedent Segav Pniel Avihail.
23. Plaintiff Shahak Eitam Avihail is the brother of decedent Segav
Pniel Avihail.
24. Plaintiffs Itzhak Cohen and Ayala Cohen are the parents of
decedent Nerya Cohen. They bring this action and all relevant claims individually, on
behalf of the estate of Nerya Cohen, and as natural guardians of their minor children,
plaintiffs Tamar Cohen, Efrat Cohen, Nahama Cohen, Benaya Cohen, and Moriya
Cohen.
25. Plaintiffs Itzhak Cohen and Ayala Cohen are authorized by the
provisions of Part 5 of the Inheritance Law to bring this action on behalf of the Estate of
Nerya Cohen.
26. Plaintiffs Achituv Cohen, Yehoyada Cohen and Benaya Cohen are
the brothers of decedent Nerya Cohen.
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27. Plaintiffs Merav Quint, Orit Laik, Edut Cohen, Hadas Sharhaby,
Tamar Cohen, Efrat Cohen, Nahama Cohen, and Moriya Cohen are the sisters of
decedent Nerya Cohen.
28. Plaintiffs Dror Eldar and Avital Eldar are the parents of decedent
Yonatan Yitzchak Eldar. They bring this action and all relevant claims individually, on
behalf of the estate of Yonatan Yitzchak Eldar, and as natural guardians of their minor
children, plaintiffs Yishai Eldar and Gilad Eldar.
29. Plaintiffs Dror Eldar and Avital Eldar are authorized by the
provisions of Part 5 of the Inheritance Law to bring this action on behalf of the Estate of
Yonatan Yitzchak Eldar.
30. Plaintiffs David Shilo Eldar, Yair Asher Eldar, Yehuda Eldar,
Daniel Eldar, Yishai Eldar, and Gilad Eldar are the brothers of decedent Yonatan
Yitzchak Eldar.
31. Plaintiff Dvora Giladi is the sister of decedent Yonatan Yitzchak
Eldar.
32. Plaintiffs Tuvia Lifshits and Tsofia Pnina Lifshits are the parents of
decedent Yochay Lifshits. They bring this action and all relevant claims individually, on
behalf of the estate of Yochay Lifshits, and as natural guardians of their minor children,
plaintiffs Amichay Lifshits, Avishay Lifshits, and Amitay Lifshits.
33. Plaintiffs Tuvia Lifshits and Tsofia Pnina Lifshits are authorized by
the provisions of Part 5 of the Inheritance Law to bring this action on behalf of the Estate
of Yochay Lifshits.
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34. Plaintiff Elyasaf Lifshits, Amichay Lifshits, Avishay Lifshits, and
Amitay Lifshits are the brothers of decedent Yochay Lifshits.
35. Plaintiff Rivka Lifshits is the sister of decedent Yochay Lifshits.
36. Defendant Bank of China Limited, is a China-based international
commercial bank with physical presence in more than 30 countries, including the
United States. It maintains a website designed to attract English speaking customers:
http://www.boc.cn/en/index.html. Through that website, individuals and
organizations can bank with the Defendant Bank of China Limited from anywhere in
the world.
37. During the year ending December 31, 2011, Defendant Bank of
China Limited held dollar-denominated deposits totaling approximately
$244,000,000,000.
38. Defendant Bank of China, New York is a wholly owned subsidiary
of Bank of China Limited. It operates three branches in the United States: two in
Manhattan, the other in Los Angeles.
39. Upon information and belief, Bank of China, New York is a legal
fiction that Bank of China Limited uses to facilitate its American operations. It has no
existence independent of Bank of China Limited.
40. Defendant Board of Directors of Bank of China Limited operates
and controls the Defendant Bank of China Limited.
41. Defendant Board of Supervisors of Bank of China Limited has
supervisory responsibility over the Defendant Bank of China Limited.
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42. Defendant Board of Directors, Bank of China, New York, operates
and controls the Bank of China, New York.
43. Defendant President, Bank of China, New York, is the chief
executive of the Defendant Bank of China, New York.
44. Defendant Chairman, Bank of China, New York, is the Chairman of
the Board of Directors of Bank of China, New York or is otherwise the principal director
of Bank of China, New York.
45. Defendant Branch Manager, Bank of China, New York, is the
manager of the New York branch or branches through which the dollar denominated
wire transfers described by paragraphs 70-75 were routed.
46. Following due diligence, Plaintiffs were not able to indentify the
names of Defendant President, Bank of China, New York; Defendant Chairman, Bank of
China, New York; or Defendant Branch Manager, Bank of China, New York.
47. Upon information and belief, Defendant Board of Directors, Bank
of China, New York; Defendant President, Bank of China, New York; and Defendant
Chairman, Bank of China, New York are under the direct responsibility and/or control
of senior management of Defendant Bank of China Limited.
STATEMENT OF FACTS
A. Hamas
48. Hamas was formed in the Gaza Strip during the early 1980s.
49. Hamas is a radical terrorist organization. Hamas’ openly-declared
goal is the creation of an Islamic state in the territory of Israel, the West Bank and the
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Gaza Strip, and the destruction of the State of Israel and the murder or expulsion of its
Jewish residents. Hamas seeks to achieve this goal by carrying out terrorist attacks
against Jewish civilians in Israel, the West Bank and the Gaza Strip. Hamas proudly and
openly acknowledges that it uses terrorism to achieve its political goals. Hamas uses
terrorism in an effort to coerce, intimidate and influence government decision-makers
and the public in Israel to accept Hamas’ demands.
50. The Hamas Covenant of 1988, its founding document, available
publicly on the internet at http://avalon.law.yale.edu/20th_century/hamas.asp, states
the following:
a. On the purpose of Hamas:
i. “The Islamic Resistance Movement [(“Hamas”)]
emerged to carry out its role through striving for the
sake of its Creator, its arms intertwined with those of
all the fighters for the liberation of Palestine. The
spirits of its fighters meet with the spirits of all the
fighters who have sacrificed their lives on the soil of
Palestine, ever since it was conquered by the
companions of the Prophet, Allah bless him and grant
him salvation, and until this day.”
ii. “[Hamas] is a distinguished Palestinian movement,
whose allegiance is to Allah, and whose way of life is
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Islam. It strives to raise the banner of Allah over every
inch of Palestine ….”
iii. “[Hamas] is one of the links in the chain of the
struggle against the Zionist invaders. It goes back to
1939, to the emergence of the martyr Izz al-Din al
Kissam and his brethren the fighters, members of
Moslem Brotherhood.”
b. On Israel and the Jews:
i. “Israel [(i.e. the Jewish People)] will exist and will
continue to exist until Islam will obliterate it, just as it
obliterated others before it.”
ii. “[Hamas] believes that the land of Palestine is an
Islamic Waqf consecrated for future Moslem
generations until Judgement [sic] Day.”
iii. “This is the law governing the land of Palestine in the
Islamic Sharia (law) …. Any procedure in
contradiction to Islamic Sharia, where Palestine is
concerned, is null and void.”
iv. “[The Jews] strived to amass great and substantive
material wealth which they devoted to the realisation
of their dream. With their money, they took control of
the world media, news agencies, the press, publishing
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houses, broadcasting stations, and others. With their
money they stirred revolutions in various parts of the
world with the purpose of achieving their interests
and reaping the fruit therein. They were behind the
French Revolution, the Communist revolution and
most of the revolutions we heard and hear about, here
and there.… With their money they were able to
control imperialistic countries and instigate them to
colonize many countries in order to enable them to
exploit their resources and spread corruption there….
They were behind World War I, when they were able
to destroy the Islamic Caliphate, making financial
gains and controlling resources. They obtained the
Balfour Declaration, formed the League of Nations
through which they could rule the world. They were
behind World War II, through which they made huge
financial gains by trading in armaments, and paved
the way for the establishment of their state. It was
they who instigated the replacement of the League of
Nations with the United Nations and the Security
Council to enable them to rule the world through
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them. There is no war going on anywhere, without
having their finger in it.”
v. “The Zionist invasion is a vicious invasion.”
vi. “The Zionist plan is limitless. After Palestine, the
Zionists aspire to expand from the Nile to the
Euphrates. When they will have digested the region
they overtook, they will aspire to further expansion,
and so on. Their plan is embodied in the "Protocols of
the Elders of Zion", and their present conduct is the
best proof of what we are saying.”
c. On Islamic doctrine regarding peace with Israel:
i. “Allah is [Islam’s] target, the Prophet is its model, the
Koran its constitution: Jihad is its path and death for
the sake of Allah is the loftiest of its wishes.”
ii. “Initiatives, and so-called peaceful solutions and
international conferences, are in contradiction to the
principles of [Hamas]. Abusing any part of Palestine
is abuse directed against part of religion. Nationalism
of [Hamas] is part of its religion.”
iii. “It is necessary that scientists, educators and teachers,
information and media people, as well as the
educated masses, especially the youth and sheikhs of
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the Islamic movements, should take part in the
operation of awakening (the masses). It is important
that basic changes be made in the school curriculum,
to cleanse it of the traces of ideological invasion that
affected it ….”
iv. “The Moslem woman has a role no less important
than that of the moslem [sic] man in the battle of
liberation. She is the maker of men. Her role in
guiding and educating the new generations is great….
She has to teach them to perform the religious duties
in preparation for the role of fighting awaiting them.
That is why it is necessary to pay great attention to
schools and the curriculum followed in educating
Moslem girls, so that they would grow up to be good
mothers, aware of their role in the battle of
liberation.”
d. On Jihad:
i. “Our struggle against the Jews is very great and very
serious. It needs all sincere efforts. It is a step that
inevitably should be followed by other steps. The
Movement is but one squadron that should be
supported by more and more squadrons from this
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vast Arab and Islamic world, until the enemy is
vanquished and Allah's victory is realised.”
ii. “The Day of Judgement [sic] will not come about until
Moslems fight the Jews (killing the Jews), when the
Jew will hide behind stones and trees. The stones and
trees will say O Moslems, O Abdulla, there is a Jew
behind me, come and kill him.”
iii. “The day that enemies usurp part of Moslem land,
Jihad becomes the individual duty of every Moslem.
In face of the Jews’ usurpation of Palestine, it is
compulsory that the banner of Jihad be raised. To do
this requires the diffusion of Islamic consciousness
among the masses, both on the regional, Arab and
Islamic levels. It is necessary to instill the spirit of
Jihad in the heart of the nation so that they would
confront the enemies and join the ranks of the
fighters.”
iv. “[Hamas] … urges the Arab and Islamic peoples, their
governments, popular and official groupings … [to]
back and support [Hamas,] extending to it more and
more funds till Allah's purpose is achieved when
ranks will close up, fighters join other fighters and
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masses everywhere in the Islamic world will come
forward in response to the call of duty while loudly
proclaiming: Hail to Jihad. Their cry will reach the
heavens and will go on being resounded until
liberation is achieved, the invaders vanquished and
Allah’s victory comes about.”
v. “There is no solution for the Palestinian question
except through Jihad.”
51. Hamas is listed by the U.S. Department of State (“State
Department”) as a Foreign Terrorist Organization (“FTO”).
52. Hamas has been listed as an FTO since 1997 and was so listed at all
times relevant to this litigation.
53. The State Department’s list of FTOs is available publicly on the
internet at http://www.state.gov/j/ct/rls/other/des/123085.htm.
54. Hamas is listed by the State Department as a Specially Designated
Global Terrorist (“SDGT”) pursuant to E.O. 13224.
55. Hamas has been listed as an SDGT since October 31, 2001 and was
so listed at all times relevant to this litigation.
56. The State Department’s list of SDGTs is available publicly on the
internet at http://www.state.gov/j/ct/rls/other/des/143210.htm.
57. Between the time of its founding and March 6, 2008 (and until the
present day), Hamas has carried out thousands of terrorist attacks in Israel, the West
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Bank and the Gaza Strip, in which scores of Israeli and U.S. citizens were murdered and
hundreds more wounded.
58. Between the time of its founding and March 6, 2008, Hamas’ policy
and practice of carrying out terrorist attacks was and is notorious and well known to
the public at large, including Defendants.
59. Between 2003 and March 6, 2008, the courts of the United States
published numerous decisions finding that Hamas was responsible for terrorist attacks
in which American citizens were killed or injured.
60. Between 1999 and March 6, 2008, the annual Patterns of Global
Terrorism Report published by the United States Department of State consistently
reported that Hamas was responsible for terrorist attacks in which American citizens
were killed or injured.
61. Defendants had and continue to have, at all times relevant to this
litigation, actual knowledge that Hamas is a terrorist organization.
62. Defendants had and continue to have, at all times relevant to this
litigation, actual knowledge that Hamas uses its resources to deliberate target, with
intent to kill, Jews in Israel.
B. Bank of China’s Provision of Material Support and Resources to Hamas
63. Hamas is subject to strict economic sanctions programs imposed by
the United States as the result of its designation as an FTO and SDGT (collectively
hereinafter: “U.S. Sanctions Regime”).
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64. The U.S. Sanctions Regime is intended to prevent Hamas from
conducting banking activities, and thereby limit its ability to plan, to prepare and to
carry out terrorist attacks.
65. The U.S. Sanctions Regime is effective when it is observed and
enforced. Hamas is unable to conduct banking activities via banks and other financial
institutions which observe and enforce the U.S. Sanctions Regime.
66. If all banks and financial institutions around the world observed
and enforced the U.S. Sanctions Regime, the ability of Hamas to conduct banking
activities would be severely restricted, and Hamas’ ability to plan, to prepare and to
carry out terrorist attacks would be significantly reduced.
67. Hamas requires access to cash, and thus to the banking services of
banks that do not observe and enforce the U.S. Sanctions Regime, in order to conduct
their operations and commit acts of terrorism.
68. Nearly all banks and financial institutions around the world
observe and enforce the U.S. Sanctions Regime. Hamas is therefore forced to conduct its
banking activities using those very few banks and financial institutions which do not
observe and enforce the U.S. Sanctions Regime.
69. The Defendants do not observe or enforce the U.S. Sanctions
Regime.
70. Beginning in or about July 2003, Defendant Bank of China Limited
began to provide extensive banking services to Hamas. Specifically, between 2003 and
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the date of the Terrorist Shooting (described infra), Bank of China Limited executed
dozens of dollar-denominated wire transfers for Hamas, totaling several million dollars.
71. Upon information and belief, the money that Defendants’
transferred originated from Hamas’ illegal activities around the world, including,
without limitation illicit drug smuggling in South American and illicit diamond trade in
Africa.
72. Upon information and belief, Hamas engages in the illegal
activities described in the prior paragraph in order to finance their terrorism.
73. The dollar-denominated wire transfers referenced in paragraph 70
were initiated by the Hamas leadership in Iran, Syria and elsewhere in the Middle East,
and were executed by and through Defendant Bank of China, New York and/or Bank
of China’s branches in the United States (most probably through Manhattan, given that
two-thirds of the Defendants’ U.S. branches are in Manhattan).
74. Most of these wire transfers referenced in paragraph 70 were made
to account number 4750401-0188-150882-6 at a Bank of China branch in Guanzhou,
China, in the name of “S.Z.R Alshurafa.” The owner of the account, Said al-Shurafa
(“Shurafa”) is a senior officer and agent both of Hamas and the Palestine Islamic Jihad
terrorist organization.
75. Some of the other wire transfers referenced in paragraph 70 were
made by Hamas via Defendant Bank of China, New York and/or Bank of China’s
branches in the United States to another account belonging to Shurafa at the same Bank
of China branch in Guanzhou, account number 7432674-7800-767733-3.
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76. The wire transfers referred to in paragraphs 70-75 are referred to
collectively hereinafter as “Transfers.”
77. Defendants knew at all times relevant to this litigation that Shurafa
was a Hamas operative.
78. Upon receiving the Transfers in his Bank of China accounts,
Shurafa, acting in accord with the instructions he received from Hamas, transferred the
money to Hamas terrorist leadership in Israel, the West Bank and the Gaza Strip, for the
purpose of planning, preparing for and executing terrorist attacks.
79. Terrorist organizations such as Hamas need wire transfer and other
banking services in order to plan, to prepare for and to carry out terrorist attacks.
80. Provision of wire transfer or other banking services to Hamas
enables Hamas to plan, to prepare for and to carry out terrorist attacks, and enhances
Hamas’ ability to plan, to prepare for and to carry out such attacks.
81. Defendants’ provision of banking services to Hamas, via Shurafa,
enables Hamas to plan, to prepare for and to carry out terrorist attacks, and enhances
Hamas’ ability to plan, to prepare for and to carry out such attacks.
82. Hamas carried out the Transfers in order to transfer and receive
funds necessary for planning, preparing and carrying out the Hamas’ terrorist activity,
including bombing attacks against civilians generally and the Terrorist Shooting
specifically.
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83. The Transfers substantially increased and facilitated Hamas’ ability
to plan, to prepare for and to carry out bombing attacks on civilians, including the
Terrorist Shooting.
84. The Transfers were enabled, facilitated and proximately caused by
the conduct of Defendants described herein.
85. As the result of the Defendants’ conduct, Hamas was able to
transfer several million dollars in funds to its terrorist leadership in Israel, the West
Bank and the Gaza Strip, which substantially increased and facilitated Hamas’ ability to
plan and carry out terrorist attacks, including the Terrorist Shooting. The Terrorist
Shooting was thereby enabled, facilitated and proximately caused by the conduct of
Defendants described herein.
86. The decedents’ and Plaintiffs’ injuries are the direct and proximate
result of Defendants’ conduct.
87. The decedents’ and Plaintiffs’ injuries were caused by Defendants’
conduct.
88. The decedents’ and Plaintiffs’ injuries arose out of and/or were
facilitated by Defendants’ conduct.
89. Upon information and belief, the decedents’ and Plaintiffs’ injuries
would not have happened but for Defendants’ conduct.
90. In April 2005, officials of the counterterrorism division of the Office
of the Prime Minister of the State of Israel (collectively hereinafter: “Israeli officials”)
met with officials of the People’s Republic of China’s (“China”) Ministry of Public
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Security and the China’s central bank (collectively hereinafter: “Chinese officials”)
regarding the Transfers. At that meeting in April 2005, the Israeli officials emphasized
to the Chinese officials that the Transfers were being made by Hamas for the purpose of
carrying out terrorist attacks, and that the Transfers enhanced Hamas’ ability to plan,
prepare for and carry out such attacks. At that April 2005 meeting, the Israeli officials
demanded that the Chinese officials take action to prevent Defendants from making
further such transfers.
91. Later, still in April 2005, the Chinese officials notified the
Defendants (or, at least, Defendant Bank of China Limited) of the Israeli officials’
statements that the Transfers were being made by the Hamas for the purpose of
carrying out terrorist attacks and that the Transfers enhanced Hamas’ ability to plan,
prepare for and carry out such attacks.
92. Also in April 2005, the Chinese officials also notified the
Defendants (or, at least, Defendant Bank of China Limited) of the Israeli officials’
demand the Defendants halt the Transfers.
93. Defendants, with the approval of the Chinese government, ignored
Israel’s demand and continued to carry out further Transfers between April 2005 and
some date (as of yet, unknown to the Plaintiffs) after the date of the Terrorist Shooting
(March 6, 2008).
94. At all relevant times, including, without limitation, the period prior
to April 2005, Defendants had actual knowledge that the Transfers were being made by
the Hamas for the purpose of carrying out terrorist attacks.
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95. If Defendants did not have actual knowledge prior to April 2005
that the Transfers were being made by the Hamas for the purpose of carrying out
terrorist attacks, the lack of knowledge was the result of willful and intentional
blindness.
96. At all relevant times, including, without limitation, the period prior
to April 2005, Defendants had actual knowledge that the Transfers enhanced Hamas’
ability to plan, prepare for and carry out terrorist attacks.
97. If the Defendants did not have actual knowledge prior to April
2005 that the Transfers enhanced Hamas’ ability to plan, prepare for and carry out
terrorist attacks, the lack of knowledge was the result of willful and intentional
blindness.
98. At all relevant times, including, without limitation, the period prior
to April 2005, the Defendants knew and/or should have known that the Transfers were
being made for illegal purposes in light of the following facts (among others):
a. Most of the Transfers were made in cash;
b. Most of the Transfers were withdrawn by Shurafa on the
day they were received or on the following day;
c. The sums involved were large, mostly in excess $100,000
(cash) or more;
d. The intervals between transfers were often short (weeks or
days) and the sums transferred were often identical or
-24-
similar. For example, many of the transfers were for $99,960,
$99,970 or $99,990;
e. The dollar amounts transferred were often round figures;
f. Many of the Transfers were structured to be slightly less
than round figures. For example, many of the transfers were
for $99,960, $99,970, $99,990 or $199,965;
g. This patterns described above continued for a period of
years;
h. These unusual Transfers had no obvious or apparent lawful
purpose and the parties to them provided Defendants with
no reasonable explanation for them.
99. The facts enumerated in paragraph 98 are recognized by materially
all professional bankers, including Defendants and their employees, as typical indicia of
transactions made for illegal purposes.
100. Upon information and belief, the Defendants either investigated the
transfers due to their suspicious nature or declined to investigate given that they were
entirely aware of the Transfers’ illegal origins and purpose.
101. Even prior to the Israeli officials’ demand to halt the Transfers in
April 2005, Defendants knew and/or should have known that the Transfers were being
made for illegal purposes because Defendants had and has statutory duties, inter alia
under United States law, specifically, without limitation, under the USA PATRIOT Act
and rules promulgated by United States Treasury and the Financial Action Task Force
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(“FATF”), to perform due diligence on their suspect accounts and account holders, and
monitor, report and refuse to execute suspicious and/or irregular banking transactions.
102. The Transfers were facially suspicious and irregular. The facts
enumerated in paragraph 98 demonstrate that the Transfers were suspicious and
irregular. Accordingly, the Transfers triggered legal duties on the part of Defendants to
perform due diligence on the Transfers and the suspect accounts and to monitor, report
and refuse to execute suspicious and/or irregular banking transactions.
103. By maintaining accounts with terrorists without adequately
attempting to ascertain the identity of its account holders, Defendants breached
obligatory statutory and regulatory duties.
104. By maintaining accounts with suspicious activity without
adequately attempting to determine the cause or justification of that suspicious activity,
Defendants breached obligatory statutory and regulatory duties.
105. By executing the Transfers without performing due diligence,
Defendants breached obligatory statutory and regulatory duties.
106. By executing the Transfers without adequately monitoring them
and without reporting them, Defendants breached obligatory statutory and regulatory
duties to monitor, report and refuse to execute suspicious and/or irregular banking
transactions.
107. Upon information and belief, if Defendants were in compliance
with their obligatory statutory and regulatory duties, they would have discovered that
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the Transfers were being used for illegal purposes and would have informed the same
to U.S. government authorities.
C. The Terrorist Shooting
108. On March 6, 2008, at approximately 8:30 pm, an agent and
operative of Hamas, Alaa Abu Dhein, arrived at the Mercaz Harav Yeshiva in
Jerusalem, Israel, and acting on behalf of Hamas, opened fire with an AK-47 (a
Kalashnikov assault rifle), on hundreds of yeshiva students.
109. Eight students were murdered in the attack, including decedents
Roi Aharon Rot, Segav Pniel Avihail, Nerya Cohen, Yonatan Yitzchak Eldar and Yochay
Lifshits. Many other students were wounded in the attack.
110. Hamas planned, made the preparations necessary for, and carried
out the Terrorist Shooting utilizing the Transfers or portions of the Transfers.
111. Hamas planned, made the preparations necessary for, and carried
out the Terrorist Shooting utilizing funds received by Hamas in exchange or
consideration for the Transfers.
112. Hamas planned, made the preparations necessary for, and carried
out the Terrorist Shooting utilizing funds that were freed up and/or otherwise made
available to Hamas as a result of the Transfers.
113. Hamas planned, made the preparations necessary for, and carried
out the Terrorist Shooting utilizing funds drawn from a pool of funds created in part by
the Transfers.
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114. At all times relevant in this litigation, Defendants had actual
knowledge that its banking services would be used by Hamas to inflict mortal injury
against Jews in Israel.
115. Through their provision of support to a Hamas operative,
Defendants enabled and/or facilitated the Terrorist Shooting.
D. Hamas’ Deliberate Obfuscation
116. Hamas generally has the practice of taking responsibility for
terrorist activity and the murder of innocent civilians when it is responsible for that
activity.
117. Some suspected that Hamas was responsible for the Terrorist
Shooting after it occurred. But there was no evidence to support that suspicion.
118. Notwithstanding its general practice of taking responsibility for its
terrorist activities, Hamas initially made no official comment regarding its involvement
in the Terrorist Shooting.
119. Hamas praised the perpetrators of the Terrorist Shooting and the
murder of innocent civilians, but made contradicting and ambiguous claims as to the
extent of its involvement.
120. On the same day as the Terrorist Shooting, the Hezbollah television
network, Al-Manar, reported that a group known as the Galilee Liberators Brigades—the
Martyrs of Imad Mughniyeh claimed responsibility for the Terrorist Shooting. This false
report created considerable doubt as to Hamas’s involvement in the Terrorist Shooting.
-28-
121. After Reuters news agency reported that an anonymous source
placed responsibility for the Terrorist Shooting on Hamas, Abu Obeida, the spokesman
for the Izz ad-Din Al Qassam Brigades, the military wing of Hamas, said that no such
claim was official unless made in a written statement signed by the military wing of
Hamas.
122. Notwithstanding its general practice of doing so, the military wing
of Hamas signed no written statement claiming responsibility for the Terrorist
Shooting.
123. In his statement in response to Reuters’ report referenced in
paragraph 121, Abu Obeida referenced, by way of illustration, a signed statement from
the military wing of Hamas claiming responsibility for a terrorist attack in Dimona,
Israel, which occurred the same year as the Terrorist Shooting.
124. Finally, on December 25, 2010, Hamas officially claimed
responsibility for the Terrorist Shooting in a publication entitled The Path of Glory (Darb
al-ezza). The Path of Glory was an attempt to mark Hamas’ 23rd anniversary. It includes
statements by Hamas military leaders along with statistical data on terror actions
carried out against Israel.
125. Among the statements printed in the The Path of Glory was Hamas’
formal acceptance of responsibility for the Terrorist Shooting on March 6, 2008.
126. Prior to the December 25, 2010 publication of The Path of Glory,
Plaintiffs had no means of suing Hamas or anyone else because their accusations would
-29-
have been nothing but unsubstantiated conjecture in the face of considerable
uncertainty as to who was responsible for the Terrorist Shooting.
127. Prior to December 25, 2010, the identity of the Defendants as proper
defendants in this litigation was neither known nor knowable to the Plaintiffs.
E. Israeli Law
128. Pursuant to CPLR § 4511(b) plaintiffs hereby request that the Court
take judicial notice of the law of the State of Israel as set forth below.
129. Causes of action in tort in Israeli law are codified in the Civil
Wrongs Ordinance (New Version)–1968 (“CWO”).1 The CWO provides that any person
injured or harmed by the civil wrongs enumerated in the CWO is entitled to relief from
the person liable or responsible for the wrong.
130. CWO § 35 creates a “civil wrong” of Negligence.
131. CWO § 35 provides that a person is liable for the civil wrong of
Negligence when he commits an act which a reasonable and prudent person would not
have committed under the same circumstances; or refrains from committing an act
which a reasonable and prudent person would have committed under the same
circumstances; or, in the performance of his occupation, does not use the skill or
exercise the degree of caution which a reasonable person qualified to act in that
1 For the convenience of the Court, a translation of the CWO is available
here: http://www.israelinsurancelaw.com/tort-laws/tort-ordinance-new-version.html. The Plaintiffs are not responsible for the translation and cannot attest to its accuracy. An authoritative Hebrew language version is available here: http://www.nevo.co.il/law_html/law01/306_001.htm.
-30-
occupation would have used or exercised under the same circumstances, and thereby
causes damage to another person toward whom, under those circumstances he is
obligated not to act as he did.
132. CWO § 36 provides that the obligation toward “another person”
stated in the last sentence of § 35 is toward all persons (without regard to any particular
“duty,” as is common in American law), to the extent that a reasonable person could
have foreseen, under the same circumstances, that in the ordinary course of events such
persons were liable to be injured by the act.
133. CWO § 63 creates a “civil wrong” of Breach of Statutory Duty.
134. CWO § 63 provides that a person is liable for the civil wrong of
Breach of Statutory Duty when he fails to comply with an obligation imposed under
any “enactment,” if the enactment is intended for the benefit or protection of another
person, and if the breach of the enactment caused that person damage of the kind or
nature intended to be prevent by the enactment.
135. Under Israel’s Interpretation Ordinance (New Version),2 an
“enactment,” within the meaning of the CWO, means “every law and every regulation,”
while the terms “law” and “regulation” are defined, in turn, as acts of the Knesset
(Israel’s parliament) and of “any authority in Eretz Israel or in Israel,” respectively.
2 Plaintiffs do not currently have a good English translation of the
Interpretation Ordinance. A treatment of the relevant portions is available at Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1, 67 (D.D.C. 2010). An authoritative Hebrew language version is available here: http://www.nevo.co.il/law_html/law01/p197_001.htm.
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136. CWO § 63(b) provides that for the purpose of CWO § 63, a law or
regulation is deemed to have been enacted for the benefit or protection of a specific
person if it is intended for the benefit or protection of that person, or for the benefit or
protection of persons in general, or of persons of a category or definition to which that
specific person belongs.
FIRST CAUSE OF ACTION
NEGLIGENCE
Performance of Negligent Acts
Under the Law of the State of Israel
137. All prior paragraphs are incorporated by reference as if set forth
fully herein.
138. By carrying out the Transfers, after and despite having been
expressly warned of the illegal and dangerous purpose and intent, Defendants
performed acts which a reasonable and prudent person would not have committed
under the same circumstances, within the meaning of the CWO.
139. By carrying out the Transfers, after and despite having actual
knowledge of the illegal and harmful purposes of the Transfers, Defendants performed
acts which a reasonable and prudent person would not have committed under the same
circumstances, within the meaning of the CWO.
140. By carrying out the Transfers, after and despite having constructive
knowledge of the illegal and harmful purposes of the Transfers, Defendants performed
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acts which a reasonable and prudent person would not have committed under the same
circumstances, within the meaning of the CWO.
141. Defendants executed the Transfers despite that a reasonable person
would have foreseen under the same circumstances that, in the ordinary course of
events, persons such as the decedents and the Plaintiffs were likely to be harmed as a
direct result of the Defendants’ actions. Such a reasonable person would not have
executed the Transfers in light of the injuries that such Transfers were likely to cause.
142. Defendants’ negligence caused Plaintiffs’ injuries and the
descendants’ deaths.
143. Defendants’ negligence proximately caused Plaintiffs’ injuries and
the descendants’ deaths.
144. Defendants are liable for the full amount of the Plaintiffs’ and the
decedents’ damages.
SECOND CAUSE OF ACTION
NEGLIGENCE
Negligent Failure to Act
Under the Law of the State of Israel
145. All prior paragraphs are incorporated by reference as if set forth
fully herein.
146. Defendants did not, in the performance of their occupation and the
duties thereof, use the skill or exercise the degree of caution which a reasonable person
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qualified to act in that occupation would have used or exercised under the same
circumstances, within the meaning of the CWO.
147. Defendants failed to prevent the Transfers from occurring and
failed to subsequently block them despite that a reasonable person operating in their
profession would have identified that the Transfers were highly suspect and would
have reported them, refused to execute them, and done whatever it could to seek their
refund.
148. Defendants failed to prevent the Transfers from occurring despite
being informed in April 2005 that the Transfers were illegal and were being used to
finance terrorism. A reasonable person operating in their profession would have
refused to execute any future Transfers upon learning of their purpose.
149. Defendants failed to prevent the Transfers from occurring despite
that a reasonable person would have foreseen under the same circumstances that, in the
ordinary course of events, persons such as the decedents and the Plaintiffs were likely
to be harmed as a direct result of the Defendants’ failure to prevent the Transfers. Such
a reasonable person would have prevented the Transfers in light of the injuries that
such Transfers were likely to cause.
150. Defendants’ negligence caused the Plaintiffs’ injuries and the
descendants’ deaths.
151. Defendants’ negligence proximately caused the Plaintiffs’ injuries
and the descendants’ deaths.
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152. Defendants are liable for the full amount of the Plaintiffs’ and the
decedents’ damages.
THIRD CAUSE OF ACTION
NEGLIGENCE PER SE
Under the Law of the State of Israel
153. All prior paragraphs are incorporated by reference as if set forth
fully herein.
154. Defendants refrained from committing acts which a reasonable and
prudent person would have committed under the same circumstances, within the
meaning of the CWO, in that, inter alia, by carrying out the Transfers, Defendants failed
to comply with their statutory and regulatory obligations under United States law
specifically, without limitation, under the USA PATRIOT Act and rules promulgated by
United States Treasury and the FATF.
155. Defendants’ obligatory statutory and regulatory duties compelled
them to perform due diligence on their suspect accounts and account holders, and
monitor, report and refuse to execute suspicious and/or irregular banking transactions.
156. If Defendants’ had complied with their obligatory statutory and
regulatory duties, as a reasonable and prudent person would have, within the meaning
of the CWO, the illegal Transfers would not have happened or would have been
stopped sooner.
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157. Defendants’ negligence caused the Plaintiffs’ injuries and the
descendants’ deaths.
158. Defendants’ negligence proximately caused the Plaintiffs’ injuries
and the descendants’ deaths.
159. Defendants are liable for the full amount of the Plaintiffs’ and the
decedents’ damages.
FOURTH CAUSE OF ACTION
BREACH OF STATUTORY DUTY
Under the Law of the State of Israel
160. All prior paragraphs are incorporated by reference as if set forth
fully herein.
161. Defendants breached and failed to comply with obligations
imposed upon them by numerous enactments, which were intended for the benefit and
protection of persons in general, and for the benefit and protection of persons of the
type, category and definition to which plaintiffs and the decedents belong, within the
meaning of the CWO.
162. The enactments breached by Defendants include, without
limitation:
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a. Section 4 of Israel’s Prevention of Terrorism Ordinance, 5708-
1948,3 which, for the benefit of victims and potential victims
of terrorism, criminally prohibits the provision of material
support to terrorist organizations such as Hamas;
b. Sections 145 and 148 of Israel’s Penal Law, 5737-1977,4 which,
for the benefit of victims and potential victims of terrorism,
criminally prohibits the provision of material support to
terrorist organizations such as Hamas; and
c. Section 85 of Israel’s Defense Regulations (Emergency Period)–
1945,5 which, for the benefit of victims and potential victims
of terrorism, criminally prohibits the provision of services
and other material support to terrorist organizations such as
Hamas.
3 For the convenience of the Court, a translation of the relevant provisions
of the Prevention of Terrorism Ordinance is available here: http://www.mfa.gov.il/MFA/MFAArchive/1900_1949/Prevention+of+Terrorism+Ordinance+No+33+of+5708-19.htm. The Plaintiffs are not responsible for the translation and cannot attest to its accuracy. An authoritative Hebrew language version is available here: http://www.nevo.co.il/Law_word/law01/250_001.doc.
4 For the convenience of the Court, a translation of the Penal Law is available here: http://www.oecd.org/investment/briberyininternationalbusiness/anti-briberyconvention/43289694.pdf. The Plaintiffs are not responsible for the translation and cannot attest to its accuracy. An authoritative Hebrew language version is available here: http://www.nevo.co.il/law_html/law01/073_002.htm.
5 For the convenience of the Court, a translation of the Defense Regulations (Emergency Period) is available here: http://nolegalfrontiers.org/en/military-orders/mil02. The Plaintiffs are not responsible for the translation and cannot attest to its accuracy. An authoritative Hebrew language version is available here: www.nevo.co.il/Law_word/law01/999_194.doc.
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163. Israeli law, § 13 of Israel’s Penal Law, 5737-1977,6 provides that the
courts of Israel have extraterritorial criminal jurisdiction over crimes against the
security of the State of Israel and over crimes against the lives and persons of Israeli
citizens as such. Accordingly, the conduct of Defendants described herein breached the
enactments listed above, among others, despite the fact that Defendants conduct did not
take place in Israel.
164. The last event necessary to give rise to the Defendants’ civil
liability, the injuries to the decedents and the Plaintiffs, occurred in Israel.
165. All of the enactments listed above are intended for the benefit and
protection of persons in general, for the specific benefit and protection of innocent
civilians such as the plaintiffs and the decedents, in that all of the statutory enactments
listed above are intended to protect all such persons from terrorist attacks and from all
the damages which terrorist attacks are liable to inflict.
166. Defendants’ breach of their statutory obligations caused the harms
that they were intended to prevent and the injuries to the Plaintiffs and the decedents.
167. Defendants’ breach of their statutory obligations proximately
caused the harms that they were intended to prevent and the injuries to the Plaintiffs
and the decedents.
6 See supra note 4.
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168. The harm and injuries inflicted against the Plaintiffs and the
decedents are among the kind and nature of damages intended to be prevented by the
statutory enactments which were breached by the Defendants.
169. Defendants are liable for the full amount of the Plaintiffs’ and the
decedents’ damages.
REQUEST FOR RELIEF
WHEREFORE, the Plaintiffs respectfully request that this Court grant the
following relief:
(a) Compensatory damages in an amount to be determined at trial, but not
less than $750 million;
(b) A declaration that the Defendants’ actions violate Israeli law;
(c) Costs and attorneys fees to the extent permitted by law; and
(d) Such other and further relief this Court may deem appropriate
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Dated: Brooklyn, New York
October 23, 2012
Yours,
THE BERKMAN LAW OFFICE, LLC
Attorneys for the plaintiff
by:
Robert J. Tolchin
111 Livingston Street, Suite 1928
Brooklyn, New York 11201
(718) 855-3627
Nitsana Darshan-Leitner & Co.
Nitsana Darshan-Leitner, Adv.
Israeli Counsel for Plaintiffs
10 Hata’as Street
Ramat Gan, 52512, Israel
VERIFICATION
Robert J. Tolchin, an attorney for the plaintiffs in the within action, duly
admitted to practice in the Courts of the State of New York, affirms the following
statements to be true under the penalties of perjury, pursuant to CPLR 2016:
He has read the foregoing complaint and knows the contents thereof to be
true to his own knowledge except as to those matters therein stated to be alleged on
information and belief, and as to those matters she believes it to be true.
He further states that the source of this information and the grounds for
his belief are derived from the file maintained in the normal course of business of the
attorneys for the plaintiff herein.
He further states that the reason this affirmation is not made by the
plaintiffs is that at the time the complaint was being prepared, the plaintiffs were not
found to be within the County of Kings, which is the county where the attorney for the
plaintiff herein maintains his office.
Dated: Brooklyn, New York
October 23, 2012
Robert J. Tolchin
THE BERKMAN LAW OFFICE, LLC 111 Livingston Street, Suite 1928
Brooklyn, New York 11201
718-855-3627
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------------------- X
JACOB ROT, et al.,
Plaintiffs,
-against-
BANK OF CHINA LIMITED, et al.,
Defendants.
--------------------------------------------------------------------------------- X
Index No: ___________ / 12
SUMMONS AND COMPLAINT
Pursuant to 22 N.Y.C.R.R. § 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: October 23, 2012 Signature: ______________________________