IN RE: the ESTATE OF Ira WEINSTEIN

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Surrogate's Court, Nassau County, New York.

IN RE: the ESTATE OF Ira WEINSTEIN, Deceased.

Decided: June 26, 2000

Jeffrey A. Miller, pro se. Westerman Shapiro Draghi & Miller, L.L.P., Garden City, for Jeffrey A. Miller and another, petitioners.

The question presented is whether the Surrogate's Court of Nassau County has jurisdiction to grant limited letters of administration where the sole asset of the estate of a non-domiciliary decedent is a cause of action against the foreign state of Syria pursuant to the Foreign Sovereign Immunities Act (FSIA) of 1976 (28 U.S.C.A. § 1601 et seq., as amended).

On April 13, 1996, the decedent Ira Weinstein, a citizen of the U.S. residing in Israel, was allegedly killed in Jerusalem, Israel, as the result of a terrorist suicide bombing incident sponsored by the state of Syria.   The sole asset of decedent's estate is his claim against Syria pursuant to FSIA § 1605(a)(7).

 Federal and state courts lack subject matter jurisdiction to hear a claim against a foreign state unless the claim falls within one of the exceptions to foreign sovereign immunity granted under FSIA § 1605 (Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394).   In 1996, Congress created an additional exception to foreign sovereign immunity through the Anti-Terrorism and Effective Death Penalty Act of 1996 (28 U.S.C.A. § 1605, added by Pub.L. 104-132, § 221, 110 U.S.Stat. 1214 [AEDPA];  Alejandre v. Republic of Cuba, 996 F.Supp. 1239).  AEDPA amended the FSIA to provide jurisdiction in the courts of the U.S., both federal and state, to hear suits brought by U.S. citizens against foreign sovereigns that engage in acts of terrorism in certain circumstances (Alejandre v. Republic of Cuba, supra, at 1247).   The purpose of the Amendments to the FSIA was to deter terrorist acts against U.S. citizens by foreign sovereigns and provide a forum for justice for victims of terrorist attacks (28 U.S.C.A. § 1605, added by Pub.L. 104-132, § 221, 110 U.S.Stat. 1214 [1996] ).

Pursuant to the 1996 Amendments to the FSIA, foreign states are no longer immune from the jurisdiction of the U.S. courts in any case “in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing ․ or the provision of material support or resources ․ for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency ․” (28 U.S.C.A. § 1605[a][7] ).   Additional requirements under FSIA § 1605(a)(7) include the following:  1) the foreign state being sued must be designated by the U.S. as a state sponsor of terrorism at the time the terrorist event occurred or as a result of the event, under section 6(j) of the Export Administration Act of 1979 (50 U.S.C.A., Appendix § 2405[j] );  2) the terrorist act must have occurred outside the territory of the foreign state;  and 3) the claimants and the victims must have been U.S. nationals at the time the act occurred (See 28 U.S.C.A. § 1605[a][7][A-B];  Alejandre v. Republic of Cuba, supra, at 1248).

 The petitioners have asserted a basis for jurisdiction in U.S. courts for their suit against Syria under FSIA § 1605(a)(7).   Decedent, Ira Weinstein, petitioner Susan Weinstein's husband, was killed by a terrorist suicide bomber, which constitutes an extrajudicial killing under the Act (Flatow v. Islamic Republic of Iran, 999 F.Supp. 1).   The terrorist suicide bomber responsible for Mr. Weinstein's death allegedly acted on orders from or on behalf of the government of Syria.   The additional requirements under FSIA § 1605(a)(7)(A-B) are also satisfied in that the state of Syria was a designated state sponsor of terrorism at the time of the bombing in 1996 (See 22 C.F.R. § 126.1 [1996] ).   The terrorist act occurred in Jerusalem, Israel, outside the territory of Syria.   Moreover, both the claimants, Susan Weinstein and Jeffrey A. Miller, and the victim, Ira Weinstein, were U.S. nationals (i.e., citizens of the U.S.) at the time of the incident (8 U.S.C.A. § 1101[a][22][A] ).

 Jurisdiction is appropriate in state courts since federal courts are not granted exclusive jurisdiction to hear suits brought under the FSIA (Elliott Assoc. v. Republic of Panama, 1996 WL 474173, 1996 U.S.Dist. LEXIS 11973 [S.D.N.Y.1996] ).  “The FSIA specifically provides for suits in the state or federal courts of the United States” (Tennessee Gas Pipeline Co. v. Continental Cas. Co., 814 F.Supp. 1302, 1309).   Since FSIA provides for jurisdiction in either the state or federal courts for a claim brought pursuant to FSIA § 1605(a)(7), a state court would have jurisdiction to hear claimants' case against Syria.

 Before the estate of decedent Ira Weinstein can commence its action against Syria in a state court, however, a representative of the decedent must be appointed.   The case at bar does not fit within the jurisdictional guidelines set forth in Surrogate's Court Procedure Act § 206 for the administration of the estate of a non-domiciliary decedent.   SCPA § 206 limits the jurisdiction of the Surrogate's Court over the estate of a non-domiciliary decedent to cases where the decedent has a cause of action for wrongful death against a domiciliary of the state of New York or left property in the state (SCPA 206).   However none of these requirements are met.   Nevertheless, federal law was amended to provide a cause of action that subjects foreign sovereigns to suit in the federal and state courts of the United States when a U.S. citizen is killed by an act of state sponsored terrorism.   Congress did not intend to limit jurisdiction for actions brought pursuant to FSIA § 1605 to any particular state, for to do so would limit the purpose of the act in providing a forum in the United States courts for U.S. citizens who are injured or killed by an act of state sponsored terrorism (Bankers Trust Co. v. Worldwide Transportation Services, Inc., 537 F.Supp. 1101).   The entire U.S. is the proper forum for actions brought under the FSIA (Bankers Trust Co. v. Worldwide Transportation Services, supra, at 1109).   State laws contain many statutes limiting their jurisdiction but those statutes and cases interpreting them are not controlling “for they are concerned more with federalism, and less with international relations, than was Congress in passing the FSIA.” (Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 2nd Cir., 647 F.2d 300, 312).   The FSIA affects international relations and “in respect of our foreign relations generally, state lines disappear.”  (United States v. Belmont, 301 U.S. 324, 331, 57 S.Ct. 758, 81 L.Ed. 1134).

Refusal by the Surrogate's Court of Nassau County to exercise jurisdiction to administer the estate of Ira Weinstein would allow state law to undercut the objective of the exception to the FSIA in § 1605(a)(7), which is to provide a forum for U.S. citizens to recover where personal injury or death was the result of the terrorist acts of a foreign sovereign (28 U.S.C.A. § 1605, added by Pub.L. 104-132, § 221, 110 U.S.Stat. 1214 [1996] ).  “Neither state nor local laws can be enforced in such [ways] as to “undercut” the objectives of federal law.”  (Chambers v. Capital Cities/ABC, 851 F.Supp. 543, 546).

Since the FSIA specifically provides for jurisdiction in any state or federal court in the U.S., there is no reason for the Surrogate's Court of Nassau County to deny granting limited letters of administration to petitioners, Susan Weinstein and Jeffrey A. Miller Esq., so that they may commence an action as personal representative of the estate of Ira Weinstein against the country of Syria and related parties pursuant to 28 U.S.C. § 1605(a)(7).   Limited letters of administration shall issue to Susan Weinstein and Jeffrey A. Miller Esq.

C. RAYMOND RADIGAN, J.