Preview
FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021
SUPREME COURT OF THE STATE OF NEW YORK
COMMERCIAL DIVISION, NEW YORK COUNTY
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YASEMIN TEKINER, :
:
in her individual capacity, as a beneficiary and a :
Trustee of The Yasemin Tekiner 2011 :
Descendants Trust and derivatively as a holder :
of equitable interests in a shareholder or a :
member of the Company Defendants, :
:
Plaintiff, :
: Index No. 657193/20
- against – :
:
BREMEN HOUSE INC., BREMEN HOUSE TEXAS, :
INC., GERMAN NEWS COMPANY, INC., GERMAN :
NEWS TEXAS, INC., 254 - 258 W. 35TH ST. LLC, :
BERRIN TEKINER, GONCA TEKINER, and :
BILLUR AKIPEK, in her capacity as a Trustee of :
The Yasemin Tekiner 2011 Descendants Trust, :
:
Defendants. :
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Reply Affirmation of Stephen P. Younger
STEPHEN P. YOUNGER, being duly sworn, pursuant to C.P.L.R. § 2106, hereby
affirms the following to be true and correct under penalty of perjury:
1. I am an attorney duly admitted to practice before the courts of the State of New
York and am a member of the firm Patterson Belknap Webb &Tyler LLP, located at 1133
Avenue of the Americas, New York, New York, 10036, counsel to Plaintiff Yasemin Tekiner
(“Plaintiff” or “Yasemin”) in this action. I am fully familiar with the facts and circumstances of
this action by virtue of my personal involvement as Plaintiff’s counsel and a review of the case
files. I respectfully submit this affirmation in response to the affirmation of defense counsel,
David B. Schwartz from Norton Rose Fulbright LLP (“Norton Rose”), concerning
communications that I had with Norton Rose.
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2. In his affirmation, Mr. Schwartz makes erroneous statements about telephone
conversations I had with Norton Rose (only one of which he participated in). He incorrectly
claims that: a) I demanded on behalf of our client, Yasemin Tekiner, “one-third of the sale price”
for an expected property sale to Extell; and b) I “declined to” narrow Yasemin’s request to
inspect books and records of the Companies. See NYSCEF Doc. 35. Not only are these
assertions inaccurate but I am submitting herewith my contemporaneous notes of both my calls
with his firm, which confirm this.1
3. In my view, these calls included settlement communications, which are
inadmissible as evidence under CPLR §4547. Upon reviewing Mr. Schwartz’s affirmation, I
requested that he delete the aspect of his affirmation that purports to discuss our settlement
communications, and mischaracterizes their contents. Mr. Schwartz declined to do so.
4. Plaintiff intends to reserve our objection to Defendants’ attempted introduction of
inadmissible settlement communications. Nevertheless, given that Mr. Schwartz has put such
communications at issue and has mis-described their contents, I submit this affirmation to put
before the Court the full facts related of these communications.
5. On November 11, 2020, I sent a letter on behalf of Plaintiff Yasemin Tekiner
(“Plaintiff” or “Yasemin”) to Defendant Berrin Tekiner, copying attorney Philip Michaels from
Norton Rose. In this letter, Plaintiff made a demand to inspect certain corporate books and
records of Bremen House, Inc. (“Bremen House”) and German News Company, Inc. (“German
News”), pursuant to her right to inspect the companies’ books and records, including as a
Director of Bremen House, as the Treasurer of German News; and as a Trustee and sole
1
My notes were contained in contemporaneous emails which have been redacted to remove any
privileged attorney-client communications. Plaintiff does not waive any applicable privilege that
may apply to these communications or to the subjects that they cover.
2
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beneficiary of a trust which holds large blocks of shares in the two companies. See NYSCEF
Doc. 10.
6. On the same day as Yasemin’s books and records demand, I telephoned
Mr. Michaels concerning that demand and to explore potential settlement options. Mr. Michaels
called me back shortly that day. Mr. Schwartz was not a party to this phone conversation.
Attached as Exhibit A is a redacted copy of a contemporaneous summary of that conversation,
dated November 11, 2020, which I recorded in an email right after the call.
7. As summarized in my email, I noted that Yasemin “had been unhappy for some
time with the situation but that the recent [Extell] sales transaction (which [she was] unhappy in
how it had been handled) presented an opportunity to call the question.” I told Mr. Michaels that
Yasemin “had asked for info, the bookkeeper was positioned to give it but [Berrin] overruled it.”
I explained that Yasemin is legally entitled to the information. Given that the parties had
previously discussed splitting up their trusts, I told him that “once [we] received” the
information, “we would like some sort of discussion over splitting up the family assets so
[Yasemin] can have more control over [her] assets.” I stated that Yasemin was interested in
exploring settlement options and that we were “not looking to run into court to charge a fiduciary
duty breach if we could find a solution that works for everyone.” Id.
8. Mr. Michaels responded that “this was good to hear,” and informed me that he
was talking to his clients the next day and that “he would be back in due course.” Id. He also
responded that “they had looked at dividing up the assets in the past” but determined that it was
not feasible because there were “major tax issues in doing so.” Id. I replied that “even short of a
distribution of the sales proceeds, there were ways of ensuring that…each [family member] had
control over what [they] own.” Id.
3
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9. On that November 11 call, I did I not make any settlement offer. Moreover, I
made clear that Yasemin needed to see the requested information before we would be in position
to discuss such matters. I simply floated possible frameworks for a settlement discussion.
10. In the ensuing three weeks, I received no substantive response from Mr. Michaels
or anyone else on behalf of the Defendants. As such, I periodically emailed Mr. Michaels asking
when he would be free to discuss the matter but kept being postponed. Attached as Exhibit B is a
copy of that string of email exchanges.
11. Not having received a substantive response, I emailed Mr. Michaels on the
morning of December 4, 2020. I stated that Yasemin “had been hopeful of getting access to the
information to which she is legally entitled without need for judicial intervention.” I asked him
to “let me know asap [when] we can expect a response.” Id. Finally, later in the morning of
December 4, Mr. Michaels stated, “We will be responding before the end of the day.” Id.
12. Later that day, I had a telephone conversation with Mr. Michaels and
Mr. Schwartz. This was a continuation of the settlement conversation that I had had with Mr.
Michaels on November 11, 2020. Attached as Exhibit C is a redacted copy of a
contemporaneous email summary entitled “12/4 Fulbright call,” dated December 4, 2020 which I
recorded in an email right after that call.
13. As stated in my summary, Mr. Michaels “started off “the conversation as he was
getting back to me. He told me that they had “looked at splitting up the assets” but had
determined that it would be a “disaster” given the tax consequences. Later in the call, he said
that that there were “insufficient proceeds [from the Extell deal] to distribute out” and that the
finances of the Companies were “precarious.” Id. I mentioned to him that the Companies owned
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other real estate assets that were not being sold and asked “if he knew the value of them….” Id.
He replied that “he did not.” Id.
14. Again, at no time did I request a third (or any portion actually) of the Extell sales
proceeds, as is claimed in Mr. Schwartz’s Affirmation. In fact. there is no reference to any offer
on either my part or Mr. Michaels in my contemporaneous notes. Had I made a settlement
demand, it would have been my practice to record it. Significantly, on this call, Mr. Michaels
had closed off my settlement overtures by stating that “it would be a disaster” to carve-up the
trusts. As a result, it would have made no sense to make any sort of demand, as Mr. Schwartz
now claims, given that Mr. Michaels told me it would be a “disaster” to even entertain the
subject. And, as I had told Mr. Michaels in our November 11 call, I would not be in position to
discuss what options might work for Yasemin to obtain control over her Trust’s assets until I had
“received” the requested financial information from the Companies. Ex. A. Not having received
that that information, I was not in position to make any sort of settlement demands, contrary to
what Mr. Schwartz now claims.
15. Mr. Michaels also told me during our December 4 calls that the family was “not
of the mind” to give Yasemin the requested information. I asked defense counsel to “put [this
response] in writing,” and they replied that they would do so. Ex. C.
16. Mr. Schwartz further stated that I “could offer to take less” information than
Yasemin had requested in her demand for records. Contrary to Mr. Schwartz’s claim that “I
declined to do so,” I responded that it “was up to them to propose” a narrowing of the request
stating what it was that they were willing to provide. In my view, they knew what information
the Companies were capable of turning over readily and what information would be more
5
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burdensome to supply. I was welcomed entertaining a proposal to narrow the requests but
needed to hear from them what that might involve.
17. Neither Norton Rose nor anyone else on behalf of the Defendants ever responded
in writing to Yasemin’s books and records request, as they had represented they would do on our
December 4 call. Nor did they ever respond with any proposal to narrow Yasemin’s demand, as
I had suggested they do in our conversation.
Dated: January 21, 2021
_____________________________
Stephen P. Younger
6
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CERTIFICATION
Counsel for Plaintiff hereby certifies that this document complies with the word count
limit of Commercial Division Rule 17. This affidavit was prepared using Microsoft Word, and
the total number of words in this affidavit, exclusive of the caption, table of contents, table of
authorities, and signature block is less than 7,000 words.
Dated: New York, New York
January 21, 2021
_____________________________
Stephen P. Younger
7
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Preview
FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION, NEW YORK COUNTY -------------------------------------- x YASEMIN TEKINER, : : in her individual capacity, as a beneficiary and a : Trustee of The Yasemin Tekiner 2011 : Descendants Trust and derivatively as a holder : of equitable interests in a shareholder or a : member of the Company Defendants, : : Plaintiff, : : Index No. 657193/20 - against – : : BREMEN HOUSE INC., BREMEN HOUSE TEXAS, : INC., GERMAN NEWS COMPANY, INC., GERMAN : NEWS TEXAS, INC., 254 - 258 W. 35TH ST. LLC, : BERRIN TEKINER, GONCA TEKINER, and : BILLUR AKIPEK, in her capacity as a Trustee of : The Yasemin Tekiner 2011 Descendants Trust, : : Defendants. : -------------------------------------- x Reply Affirmation of Stephen P. Younger STEPHEN P. YOUNGER, being duly sworn, pursuant to C.P.L.R. § 2106, hereby affirms the following to be true and correct under penalty of perjury: 1. I am an attorney duly admitted to practice before the courts of the State of New York and am a member of the firm Patterson Belknap Webb &Tyler LLP, located at 1133 Avenue of the Americas, New York, New York, 10036, counsel to Plaintiff Yasemin Tekiner (“Plaintiff” or “Yasemin”) in this action. I am fully familiar with the facts and circumstances of this action by virtue of my personal involvement as Plaintiff’s counsel and a review of the case files. I respectfully submit this affirmation in response to the affirmation of defense counsel, David B. Schwartz from Norton Rose Fulbright LLP (“Norton Rose”), concerning communications that I had with Norton Rose. 1 of 7 FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 2. In his affirmation, Mr. Schwartz makes erroneous statements about telephone conversations I had with Norton Rose (only one of which he participated in). He incorrectly claims that: a) I demanded on behalf of our client, Yasemin Tekiner, “one-third of the sale price” for an expected property sale to Extell; and b) I “declined to” narrow Yasemin’s request to inspect books and records of the Companies. See NYSCEF Doc. 35. Not only are these assertions inaccurate but I am submitting herewith my contemporaneous notes of both my calls with his firm, which confirm this.1 3. In my view, these calls included settlement communications, which are inadmissible as evidence under CPLR §4547. Upon reviewing Mr. Schwartz’s affirmation, I requested that he delete the aspect of his affirmation that purports to discuss our settlement communications, and mischaracterizes their contents. Mr. Schwartz declined to do so. 4. Plaintiff intends to reserve our objection to Defendants’ attempted introduction of inadmissible settlement communications. Nevertheless, given that Mr. Schwartz has put such communications at issue and has mis-described their contents, I submit this affirmation to put before the Court the full facts related of these communications. 5. On November 11, 2020, I sent a letter on behalf of Plaintiff Yasemin Tekiner (“Plaintiff” or “Yasemin”) to Defendant Berrin Tekiner, copying attorney Philip Michaels from Norton Rose. In this letter, Plaintiff made a demand to inspect certain corporate books and records of Bremen House, Inc. (“Bremen House”) and German News Company, Inc. (“German News”), pursuant to her right to inspect the companies’ books and records, including as a Director of Bremen House, as the Treasurer of German News; and as a Trustee and sole 1 My notes were contained in contemporaneous emails which have been redacted to remove any privileged attorney-client communications. Plaintiff does not waive any applicable privilege that may apply to these communications or to the subjects that they cover. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 beneficiary of a trust which holds large blocks of shares in the two companies. See NYSCEF Doc. 10. 6. On the same day as Yasemin’s books and records demand, I telephoned Mr. Michaels concerning that demand and to explore potential settlement options. Mr. Michaels called me back shortly that day. Mr. Schwartz was not a party to this phone conversation. Attached as Exhibit A is a redacted copy of a contemporaneous summary of that conversation, dated November 11, 2020, which I recorded in an email right after the call. 7. As summarized in my email, I noted that Yasemin “had been unhappy for some time with the situation but that the recent [Extell] sales transaction (which [she was] unhappy in how it had been handled) presented an opportunity to call the question.” I told Mr. Michaels that Yasemin “had asked for info, the bookkeeper was positioned to give it but [Berrin] overruled it.” I explained that Yasemin is legally entitled to the information. Given that the parties had previously discussed splitting up their trusts, I told him that “once [we] received” the information, “we would like some sort of discussion over splitting up the family assets so [Yasemin] can have more control over [her] assets.” I stated that Yasemin was interested in exploring settlement options and that we were “not looking to run into court to charge a fiduciary duty breach if we could find a solution that works for everyone.” Id. 8. Mr. Michaels responded that “this was good to hear,” and informed me that he was talking to his clients the next day and that “he would be back in due course.” Id. He also responded that “they had looked at dividing up the assets in the past” but determined that it was not feasible because there were “major tax issues in doing so.” Id. I replied that “even short of a distribution of the sales proceeds, there were ways of ensuring that…each [family member] had control over what [they] own.” Id. 3 3 of 7 FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 9. On that November 11 call, I did I not make any settlement offer. Moreover, I made clear that Yasemin needed to see the requested information before we would be in position to discuss such matters. I simply floated possible frameworks for a settlement discussion. 10. In the ensuing three weeks, I received no substantive response from Mr. Michaels or anyone else on behalf of the Defendants. As such, I periodically emailed Mr. Michaels asking when he would be free to discuss the matter but kept being postponed. Attached as Exhibit B is a copy of that string of email exchanges. 11. Not having received a substantive response, I emailed Mr. Michaels on the morning of December 4, 2020. I stated that Yasemin “had been hopeful of getting access to the information to which she is legally entitled without need for judicial intervention.” I asked him to “let me know asap [when] we can expect a response.” Id. Finally, later in the morning of December 4, Mr. Michaels stated, “We will be responding before the end of the day.” Id. 12. Later that day, I had a telephone conversation with Mr. Michaels and Mr. Schwartz. This was a continuation of the settlement conversation that I had had with Mr. Michaels on November 11, 2020. Attached as Exhibit C is a redacted copy of a contemporaneous email summary entitled “12/4 Fulbright call,” dated December 4, 2020 which I recorded in an email right after that call. 13. As stated in my summary, Mr. Michaels “started off “the conversation as he was getting back to me. He told me that they had “looked at splitting up the assets” but had determined that it would be a “disaster” given the tax consequences. Later in the call, he said that that there were “insufficient proceeds [from the Extell deal] to distribute out” and that the finances of the Companies were “precarious.” Id. I mentioned to him that the Companies owned 4 4 of 7 FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 other real estate assets that were not being sold and asked “if he knew the value of them….” Id. He replied that “he did not.” Id. 14. Again, at no time did I request a third (or any portion actually) of the Extell sales proceeds, as is claimed in Mr. Schwartz’s Affirmation. In fact. there is no reference to any offer on either my part or Mr. Michaels in my contemporaneous notes. Had I made a settlement demand, it would have been my practice to record it. Significantly, on this call, Mr. Michaels had closed off my settlement overtures by stating that “it would be a disaster” to carve-up the trusts. As a result, it would have made no sense to make any sort of demand, as Mr. Schwartz now claims, given that Mr. Michaels told me it would be a “disaster” to even entertain the subject. And, as I had told Mr. Michaels in our November 11 call, I would not be in position to discuss what options might work for Yasemin to obtain control over her Trust’s assets until I had “received” the requested financial information from the Companies. Ex. A. Not having received that that information, I was not in position to make any sort of settlement demands, contrary to what Mr. Schwartz now claims. 15. Mr. Michaels also told me during our December 4 calls that the family was “not of the mind” to give Yasemin the requested information. I asked defense counsel to “put [this response] in writing,” and they replied that they would do so. Ex. C. 16. Mr. Schwartz further stated that I “could offer to take less” information than Yasemin had requested in her demand for records. Contrary to Mr. Schwartz’s claim that “I declined to do so,” I responded that it “was up to them to propose” a narrowing of the request stating what it was that they were willing to provide. In my view, they knew what information the Companies were capable of turning over readily and what information would be more 5 5 of 7 FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 burdensome to supply. I was welcomed entertaining a proposal to narrow the requests but needed to hear from them what that might involve. 17. Neither Norton Rose nor anyone else on behalf of the Defendants ever responded in writing to Yasemin’s books and records request, as they had represented they would do on our December 4 call. Nor did they ever respond with any proposal to narrow Yasemin’s demand, as I had suggested they do in our conversation. Dated: January 21, 2021 _____________________________ Stephen P. Younger 6 6 of 7 FILED: NEW YORK COUNTY CLERK 01/21/2021 11:26 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2021 CERTIFICATION Counsel for Plaintiff hereby certifies that this document complies with the word count limit of Commercial Division Rule 17. This affidavit was prepared using Microsoft Word, and the total number of words in this affidavit, exclusive of the caption, table of contents, table of authorities, and signature block is less than 7,000 words. Dated: New York, New York January 21, 2021 _____________________________ Stephen P. Younger 7 7 of 7