Motion-Secondary: 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 v. Bremen House Inc., German News Company, Inc., Berrin Tekiner, Gonca Tekiner, Billur Akipek in her capacity as a Trustee of the Yasemin Tekiner 2011 Descendants Trust, Zeynep Tekiner (Intervenor Plaintiff)

On December 21, 2020 a Motion-Secondary was filed involving a dispute between Yasemin Tekiner, 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, and 254-258 W. 35Th St. Llc, Berrin Tekiner, Billur Akipek In Her Capacity As A Trustee Of The Yasemin Tekiner 2011 Descendants Trust, Bremen House Inc., Bremen House Texas, Inc., German News Company, Inc., German News Texas, Inc., Gonca Tekiner, Zeynep Tekiner, for Commercial Division in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 10/10/2022 11:16 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 765 RECEIVED NYSCEF: 10/10/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
Index No. 657193/2020
in her individual capacity, as a beneficiary and a Trustee of
The Yasemin Tekiner 2011 Descendants Trust and Commercial Division Part 3
derivatively as a holder of equitable interests in a
shareholder or a member of the Company Defendants Hon. Joel M. Cohen

Plaintiff, Mot. Sequence No. 35

-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.

ZEYNEP TEKINER,

in her individual capacity, as a beneficiary and a Trustee of
The Zeynep Tekiner 2011 Descendants Trust and
derivatively as a holder of equitable interests in a
shareholder or a member of the Company Defendants

Intervenor-Plaintiff,

-against-

Defendants.

DEFENDANTS’ REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
MOTION FOR PROTECTIVE ORDER AND TO QUASH
THE SANTANDER SUBPOENA

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Defendants1 respectfully submit this Reply Memorandum of Law in further support of their

Motion, pursuant to CPLR 3103(a), to quash a subpoena (the “Subpoena”) and for a protective

order precluding Plaintiff Yasemin Tekiner (“Yasemin” or “Plaintiff”) from pursuing utterly

irrelevant discovery from non-party Santander Bank (“Santander”).

PRELIMINARY STATEMENT

Despite conceding – as she must – that the scope of discovery in a civil action in New York

is limited to that which is “material and necessary in the prosecution or defense of an action,”

Plaintiff fails to demonstrate how any of the information sought by the Subpoena meets this basic

requirement. While extolling the Subpoena as containing “perfectly proper discovery requests”

and claiming the documents sought are “unquestionably relevant” to prove “the mismanagement

and misuse of company funds,” Plaintiff remains unable to link this supposed proof to any of the

claims and defenses in the action. Such failure is fatal, and Defendants’ motion should be granted.

Defendants’ remaining procedural arguments fare no better. Defendants have standing

under CPLR 3103(a) and 2304 to contest the Subpoena on the grounds that personal private

banking information is being sought. And Plaintiff’s dubious contention that Defendants’ motion

is untimely should also be rejected.

ARGUMENT

I. PLAINTIFF’S OPPOSITION CONFIRMS THAT THE INFORMATION
SOUGHT BY THE SUBPOENA IS UTTERLY IRRELEVANT_________

In opposition, Plaintiff seeks to justify the Subpoena by claiming that the information

sought is material and necessary “to establish certain facts relating to…accounts at

issue…including but not limited to, those concerning the alleged corporate waste, mismanagement,

and misuse of funds by the named defendants.” (Opp. at 9). As explained below, this alleged

1
All capitalized terms not defined herein shall have the same meaning as set forth in Defendants’ moving brief.

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purpose does not bring the information sought by the Subpoena within the ambit of CPLR 3101(a)

and, as such, the Subpoena should be quashed and a protective order entered.

A. Initially, Plaintiff’s Improper Use of Inadvertently Produced,
Previously Clawed-Back Documents Should Not Be Countenanced

To justify Request Nos. 1-32, Plaintiff claims that all she seeks is “legible and/or complete

versions of [certain] specific statements Defendants themselves produced.” (Opp. at 14-15.) Yet,

of course, this empty explanation is no justification at all – particularly where, like here, the

“statements” Plaintiff references were inadvertently produced and have since been clawed back.3

Plaintiff even acknowledges that these documents (personal bank account statements) were

produced in error, admitting that she “intentionally held back from requesting the Individual

Defendants’ personal accounts” in her Document Demands served on Defendants. (Opp. at 15)

(emphasis in original). Plaintiff offers no basis to maintain these Requests because there is none.

B. Plaintiff’s Opposition Verifies That the Remaining
Documents Sought are Likewise “Utterly Irrelevant”

In their moving papers, Defendants demonstrated that the Subpoena seeks the disclosure

of utterly irrelevant and palpably improper information related, in large part, to accounts and

accountholders wholly unrelated to any of the claims or defenses at issue. In response, Plaintiff

vaguely avers that the alleged mismanagement of Company funds “underlies nearly all of

[Plaintiff’s] causes of action.” (Opp. at 11.) This hollow statement, supported only by the equally

empty assertion that “all documents that show or tend to show movement of funds” in or out of

the personal bank accounts of Individual Defendants and other non-parties are “central to

Yasemin’s Complaint, and nearly all of her causes of action,” is specious. Nonetheless, in a

2
Plaintiff has withdrawn Request Nos. 18 and 19. (Opp. at 14.)
3
Plaintiff’s reference and attachment of documents that had been clawed back to her Opposition is entirely improper
and should not be countenanced. (See Opp. at 13, excerpting NYSCEF Dkt. No. 691.)

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disjointed effort to rationalize the purported materiality and necessity of the information sought in

the Subpoena, Plaintiff makes a series of erroneous arguments.

First, in an effort to rationalize Requests Nos. 5, 6, 10 and 14, Plaintiff contends that

discovery had to date allegedly indicates “a troubling trend of hundreds of thousands of dollars

being transferred from Company accounts into non-Company accounts that are controlled by the

Individual Defendants,” necessitating invading the private banking information of non-parties and

the Individual Defendants. (Opp. at 2.) But Plaintiff’s conjecture and supposition is not a “factual

predicate” for purposes of establishing that the information sought is material and necessary; rather,

to the contrary, it reveals the Subpoena to be, at most, cumulative. Plaintiff allegedly already has

documents showing transfers from Company accounts, and she has no need to see bank records

reflecting the other side of the alleged transfers – in addition to all of the unrelated, highly

proprietary information contained in such bank records.

Second, with respect to Request Nos. 7-9, 11-13 and 15-17 concerning nineteen bank

accounts held by the Individual Defendants, the Company Defendants and from entities that have

been dismissed from this case, Plaintiff admits the Subpoena is an improper attempt to end-run the

party discovery process, arguing “Yasemin would not need to subpoena Santander” if “Defendants

had actually produced these documents in discovery.” (Opp. at 15.) Defendants properly objected

to request seeking this information, Plaintiff took no further action, and she cannot now try to

resuscitate this long-since waived discovery by means of a subpoena.

Last, Plaintiff argues the information sought is somehow relevant to determine her damages.

(Opp. at 12.) But this fails for the same reason – there is no reason Plaintiff needs to see bank

records reflecting the other side of the alleged transfer to assess her damages. Moreover, the

authority relied upon by Plaintiff concerns a party seeking discovery into the plaintiff’s finances

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in order to ascertain evidence of plaintiff’s damages. See Murphy v. Metrikin, No.805387/18,

2019 NY Slip Op 33084(U), 2019 N.Y. Misc. LEXIS 5569 (Sup. Ct., N.Y. Cty. 2019) (“Defendant

also cites compelling case law justifying certain of his demands for plaintiff[‘s] […] financial

records, as such information is relevant to […] plaintiff's damages claim.” Id. at *4); Maglaras v.

Mt. Sinai Hosp., 107 A.D.2d 605, 606 (1st Dep’t 1985) (where plaintiff allegedly suffered the loss

of financial contributions from a decedent, discovery into bank records of both the plaintiff and

decedent were material and necessary to measure damages).

II. PLAINTIFF’S “STANDING” ARGUMENTS ALSO LACK MERIT

Unable to articulate a valid basis to maintain the Subpoena, Plaintiff next resorts to

hypertechnical standing arguments to contest the Subpoena. These arguments also lack merit.

First, as explained in Defendants’ moving papers, Plaintiff’s subpoena is fatally defective

because it does not describe “the circumstances or reasons such disclosure is sought,” as required

by CPLR § 3101(a)(4). In response, Plaintiff argues that Defendants “simply have no standing to

invoke the CPLR’s notice requirement.” (Opp. at 9.) The cases cited for this proposition, however,

say nothing of the sort. In fact, in both Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104,

110 (1st Dep’t 2006) and Matter of Aerco Int’l, Inc. (Precision Machining & Stamping Inc.), 2013

NY Slip Op 23165, ¶ 1, 40 Misc. 3d 571, 572, 964 N.Y.S.2d 900, 902 (Sup. Ct. N.Y. Cty. 2013),

a party to the action (not the subpoena recipient) challenged the subpoena under CPLR 3103(a),

and neither the issuing party nor the court objected on the basis of standing.

Further, Plaintiff’s contention that the single sentence included in its subpoena satisfies the

“minimal” burden placed on parties by CPLR 3101(a)(4) is also without merit. (Opp. at 9.) As

the First Department has explained, “[t]he purpose of [the notice] requirement is […] to afford a

nonparty who has no idea of the parties’ dispute or a party affected by such request an opportunity

to decide how to respond.” Velez, 29 A.D.3d at 110. Plaintiff’s notice fails to provide any such

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detail, stating only that the requested “documents are required in order to establish certain facts”

related to its claims, followed by a vague (and inaccurate) description of alleged wrongs (“alleged

corporate waste, mismanagement, and misuse of funds by the named defendants”). (Opp. at 9.)

In essence, Plaintiff has communicated nothing more than the fact that Plaintiff has brought claims

against Defendants – a fact made obvious merely by receipt of the Subpoena. Since Plaintiff’s

notice fails to provide any information to Santander which would enable it to “decide how to

respond,” it fails to meet the burden imposed by CPLR 3101(a)(4) and is therefore void. Velez,

29 A.D.3d at 110; De Stafano v. MT Health Clubs, Inc., 220 A.D.2d 331 (1st Dep’t 1995).

Second, Plaintiff asserts that Defendants lack standing to challenge the Subpoena because,

even though the requested documents are highly confidential banking records of Defendants,

Defendants somehow “hold no ownership or interest in the documents.” (Opp. at 10.) This

contention defies settled law that any party affected by the process of the court or its mandate may

apply to the court for its modification, vacatur, quashing or other relief he feels he is entitled to

receive. This remains true where a party seeks to quash a subpoena directed at a nonparty bank

for individual (party) account records. See, e.g., M&T Bank Corp. v. Moody’s Invs. Servs., Inc.,

191 A.D.3d 1288 (4th Dep’t 2021).

The cases cited by Plaintiff in support of her categorical assertion that account holders have

no standing to move to quash subpoenas served upon nonparty banks are factually distinguishable.

For example, People v. Doe, 96 A.D.2d 1018 (1st Dep’t 1983), cited by Plaintiff, involved a

subpoena issued to a nonparty bank pursuant to a Grand Jury investigation, not a civil subpoena.

As the First Department explained, in civil litigation the “issue of the customer’s standing is not

governed by the holdings in . . . cases [including Doe] where the challenges to the subpoenas were

based on alleged violations of constitutional rights.” Norkin v. Hoey, 181 A.D.2d 248, 254 (1st

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Dep’t 1992). New York courts consistently hold that parties have standing to move to quash civil

subpoenas for their bank records. See e.g., United Realty Mgmt. Co v. Capital One Bank, N.A.,

No. 653721/2013, 2016 N.Y. Misc. LEXIS 17515, at *2 (Sup. Ct. Sep. 29, 2016) (finding that an

individual has standing to move to quash a subpoena for their bank records, “[g]iven that the

material is plainly ‘about’ [them]”); Kimmel v. Schon, No. 15633/12, 2014 WL 2861553, at *7

(N.Y. Sup. Ct. June 24, 2014) (“reject[ing]” the argument that account owners did not have

standing to make the motion “[a]s a threshold matter”).4

The ruling in AQ Asset Management LLC v. Levine, 111 A.D.3d 245 (1st Dep’t 2013), is

also distinguishable. The subpoenas at issue there sought disclosure of records concerning two

attorneys’ escrow accounts as they related to a discrete, disputed series of transactions. Id. at 255-

56. Defendants’ interest in opposing a subpoena expansively seeking “all documents that show or

tend to show movement of funds” in or out of individual bank accounts is of a different, much

broader nature than the interest of an attorney in an escrow account. See also Kimmel, 2014 WL

2861553, *3, *7 (N.Y. Sup. Ct. June 24, 2014) (finding that the account holder had standing to

challenge subpoenas for their bank records). Royal Bank of Can. v. Solny, 2020 NY Slip Op

30551(U), ¶ 3 (Sup. Ct. N.Y. Cty. 2020), which relies on AQ Asset Management LLC, is similarly

distinguishable.5

Plaintiff’s interpretation of the relevant case law would categorically deny all account

holders the ability to challenge such subpoenas and should not be countenanced by this Court.6

4
In any event, as the court in Royal Bank makes clear, this argument is academic; Defendants also seek a protective
order, which there can be no argument Defendants have standing to seek (and Plaintiff offers none). (Opp. at 10, n.8).
5
Notably, the sole case relied upon by the court in AQ Asset Management LLC, Shapiro v. Chase Manhattan Bank,
53 A.D.2d 542 (1st Dep’t 1976), involved an investigative subpoena issued by a government entity and not a subpoena
by a party to a civil litigation.
6
As noted in AQ, even if Defendants are without standing to quash the subpoena, the court may, of its own volition,
quash or otherwise limit any subpoena to prevent abuse. 111 A.D.3d at 260.

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III. THE COURT SHOULD ACCEPT THE MOTION AS FILED

CPLR § 2304 provides only that a motion to quash “shall be made promptly,” as conceded

by Plaintiff in her Opposition. In applying this language, courts have not adopted a hardline rule,

and instead evaluate promptness based on the individual circumstances of the motion, as illustrated

in Santangello v. People, 38 N.Y.2d 536 (1976), the sole legal authority cited by Plaintiff.

Even assuming arguendo that the motion is untimely, this Court nevertheless maintains

discretion to consider the motion. See CPLR § 2004 (“Except where otherwise expressly

prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any

act, upon such terms as may be just and upon good cause shown, whether the application for

extension is made before or after the expiration of the time fixed.”); see also, e.g., CPLR 2001

(“At any stage of an action, . . . the court may permit a mistake, omission, defect or irregularity . . .

to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced,

the mistake, omission, defect or irregularity shall be disregarded . . . .”)

Discretion pursuant to CPLR 2004 is amply warranted here, where CPLR 2304 does not

preclude the Court from considering motions that are allegedly “un-prompt.” An untimely motion

may still be considered where 1) delay was minimal, 2) the infringing party did not act willfully,

3) the opposing party will not be prejudiced, and 4) the underlying motion has merit. Nat’l Loan

Invs., L.P. v. Bruno, 191 A.D.3d 999 (2d Dep’t 2021). Here, all four factors are in Defendants’

favor. First, delay in filing the motion was de minimis, as it was filed only one day7 after Plaintiff

alleges it was due, and Defendants filed the motion pursuant to the Court’s instruction that they do

so by September 16. Second, Defendants’ counsel did not act willfully in representing that the

7
See Gerard v. Clermont York Assocs. LLC, 143 A.D.3d 478 (1st Dep’t 2016) (seventeen day delay in filing motion
for class certification found “minimal,” especially where – like here – opposing counsel had previously consented to
multiple extensions; Gazes v. Bennett, 70 A.D.3d 579 (1st Dep’t 2010) (CPLR 2001, 2004 permitted Court to excuse
delay of one day caused by law office failure, where opposing party was not prejudiced).

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return date was September 16. See generally, Hill Reply. Aff. Third, Plaintiff does not allege –

as she cannot – that she has suffered prejudice as a result of a purported delay of one day, especially

where Plaintiff knew for weeks that Defendants intended to make this motion. Fourth, for all the

reasons set forth herein and in Defendants’ moving papers, the Motion has merit and warrants the

Court’s consideration.

CONCLUSION

For the foregoing reasons, as well as those in Defendants’ Memorandum of Law,

Defendants respectfully request that this Court grant their Motion to Quash the Subpoena and for

a Protective Order.

Dated: New York, New York PRYOR CASHMAN LLP
October 10, 2022

By: ______________________
Todd E. Soloway
Bryan T. Mohler
Meghan E. Hill
7 Times Square
New York, New York 10036-6569
Tel: (212) 421-4100
Fax: (212) 326-0806
Attorneys for Defendants

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Certification Required by Rule 17 of the
Rules of the Commercial Division of the Supreme Court

I am the attorney who is filing this document. I hereby certify that this document, exclusive

of the caption, table of contents, table of authorities, and signature block contains 2,511 words as

counted by the word-processing system used to prepare the document.

/s/ Meghan E. Hill
Meghan E. Hill

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Case Info

Judge

Joel M. Cohen Track Judge’s New Case

Case No.

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Document Filed Date

October 10, 2022

Case Filing Date

December 21, 2020

County

Parties

254-258 W. 35th St. LLC Defendant
Berrin Tekiner Defendant
Billur Akipek in her capacity as a Trustee of the Yasemin Tekiner 2011 Descendants Trust Defendant
Bremen House Inc. Defendant
Bremen House Texas, Inc. Defendant
CONKLIN, DONALD DAVID Attorney for the Plaintiff
DE SANTIS, JOSEPH VINCENT Attorney
Foley Hoag LLP Non Party
German News Company, Inc. Defendant
German News Texas, Inc. Defendant
GOLDBERG, ERIC A Attorney
GOLDBERG, ERIC ADAM Attorney for the Defendant
Gonca Tekiner Defendant
HARWOOD, ANTHONY J Attorney for the Plaintiff
HILL, MEGHAN ELIZABETH Attorney for the Defendant
IBRAHIM, SANJAY P Attorney for the Plaintiff
KAHN, MICHELE E. Attorney
KAHN, MICHELE E. Attorney for the Defendant
KEATING, LAWRENCE POLK Attorney for the Defendant
MANDEL, EVAN MORGEN Attorney for the Plaintiff
MANDELSBERG, STEVEN J. Attorney
Michele Kahn ESQ. Attorney for Proposed Intervenor-Plaintiff Non Party
MILLER, MATTHEW EDWARD Attorneys for Plaintiffs
MOHLER, BRYAN T. Attorney for the Defendant
Parker Ibrahim & Berg LLP Non Party
PARKER, SCOTT WESLEY Attorney for the Plaintiff
SCHLEIFSTEIN, DANIEL AARON Attorney for the Plaintiff
SHAW, RACHEL ELIZABETH Attorney for the Defendant
SOLOWAY, TODD E Attorney for the Defendant
TILTON, CLARE PRIMIANO Attorney for the Defendant
WEISSMAN, BENJAMIN HEALEY Attorney for the Plaintiff
WEISS, ZANDER ALOYSIUS Attorney for the Defendant
Yasemin Tekiner Plaintiff
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
YOUNGER, STEPHEN PETERS Attorney for the Plaintiff
Zeynep Tekiner (Intervenor Plaintiff) Defendant
JUDITH ARCHER Attorneys for Defendants
Philip Michaels Attorney
MATTHEW KASINDORF Attorney
Steven Young Attorney
GARY TANNENBAUM Attorney
VICTORIA CORDER Attorneys for Defendants
SEAN TOPPING Attorney
MARGARET O'NEAL Attorney
ESTHER YU Attorney
Victoria Corder Attorney
JAY SIMENS Attorney
SETH MOTT Attorney
JEFFREY GOLDMAN Attorney
BETH KAUFMAN Attorney
JEREMY KAYE Attorney
PHILIP JAWORSKYJ Attorney
TIFFANY KO Attorneys for Plaintiffs
JANET DORE Attorney
DAVID SCHWARTZ Attorneys for Defendants
LISA SCHAPIRA Attorneys for Defendants
STEPHEN PAZAN Attorney
JOHN MCDONOUGH Attorneys for Plaintiffs
ROBERT HANEY Attorneys for Plaintiffs
MICHAEL KALAN Attorney
MITCHELL KAHN Attorneys for Defendants
GARY FREIDMAN Attorneys for Plaintiffs
PHILIP MICHAELS Attorney
DAVID EISENBERG Attorney
HERBERT WEISSMAN Attorney
ANTHONY CARUSO Attorneys for Defendants
WILLIAM PARKER Attorney
DANIEL HOWARD Attorney
MARTIN MURPHY Attorneys for Plaintiffs
Matt Hanley Attorney
BENJAMIN WEISMAN Attorneys for Plaintiffs

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