Preview
FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 840 RECEIVED NYSCEF: 10/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M
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YASEMIN TEKINER, INDEX NO. 657193/2020
Plaintiff,
MOTION DATE 10/11/2022
-v-
MOTION SEQ. NO. 035
BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC.,
GERMAN NEWS COMPANY, INC., GERMAN NEWS
TEXAS, INC.,254-258 W. 35TH ST. LLC, BERRIN DECISION + ORDER ON
TEKINER, GONCA TEKINER, BILLUR AKIPEK, ZEYNEP MOTION
TEKINER,
Defendants.
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HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 035) 688, 689, 690, 691,
692, 693, 694, 695, 696, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712,
713, 714, 715, 716, 717, 718, 719, 765, 766
were read on this motion to QUASH SUBPOENA .
Defendants Bremen House Inc., German News Company, Inc., Berrin Tekiner, Gonca
Chelsea, and Billur Akipek (collectively, “Defendants”) move for an order (i) pursuant to CPLR
2304, to quash or narrow the subpoena duces tecum served by plaintiff Yasemin Tekiner on non-
party Santander Bank, N.A. (the “Subpoena”) (NYSCEF 691); and (ii) for a protective order
pursuant to CPLR § 3103, preventing Plaintiff from seeking irrelevant and immaterial
information via the Subpoena. For the following reasons, Defendants’ motion to quash is
denied.
“A motion to quash, fix conditions or modify a subpoena shall be made promptly in the
court in which the subpoena is returnable” (CPLR § 2304). It “should be made prior to the
return date” (Santangello v People, 38 NY2d 536, 539 [1976] [internal citations omitted]), since
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“[o]nce there has been compliance with the subpoena, [] a motion to quash or vacate no longer is
available” (Brunswick Hosp. Ctr., Inc. v Hynes, 52 NY2d 333, 339 [1981]). Further, “[a]n
application to quash a subpoena should be granted ‘[o]nly where the futility of the process to
uncover anything legitimate is inevitable or obvious’ . . . or where the information sought is
‘utterly irrelevant to any proper inquiry’” (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]
[citation omitted]). “It is the one moving to vacate the subpoena who has the burden of
establishing that the subpoena should be vacated under such circumstances” (id. at 39).
First, contrary to Plaintiff’s arguments, Defendants have standing to object to this
subpoena (M&T Bank Corp. v Moody’s Inv’rs Services, Inc., 191 AD3d 1288, 1290 [4th Dept
2021]; Tsunis Gasparis LLP v Ring, 74 Misc 3d 1206(A) [Sup Ct, Suffolk County 2022]).
Second, Defendants’ procedural defects are not fatal. Although Defendants filed this
application by notice of motion as opposed to by order to show cause as they were directed,1 it
was Defendants that bore the risk that Santander Bank would comply with the Subpoena before
their application was decided, which would render Defendants’ motion moot.
However, Defendants have failed to satisfy their burden of demonstrating that the
subpoena should be vacated. Defendants fail to adequately show how the requested bank records
in Requests No. 7, 8, 9, 11, 12, 13, 15, 16, and 17—which seek records evidencing transfers of
funds into and out of the accounts of the Company, and records evidencing transfers of funds
into and out of the business accounts opened on July 29 and July 30, 2020 by the Individual
1
On September 15, 2022, Defendants sought a court conference, and during the conference with
the Court’s law clerk, they were advised that if they wished to quash the subpoena, they should
file an order to show cause before the return date of the subpoena, which was represented to the
Court to be September 16, 2022. The parties seem to dispute whether September 15 or
September 16 is the return date. In any event, Defendants filed their motion on September 16,
2022, and Plaintiff has not demonstrated any prejudice from this one-day discrepancy.
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Defendants—are irrelevant to this litigation, given Plaintiff’s allegations of corporate waste,
mismanagement, and misuse of funds by the named defendants. Furthermore, there is “no
requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure
from any other source” (Kapon, 23 NY3d 32 at 38).
Likewise, Defendants have not shown that Requests Nos. 5, 6, 10 and 14—which seek
records evidencing transfers of funds into and out of the Bremen House managed account for
non-parties 254-258 W. 35th Street, LLC, Bremen House Texas, Inc. and German News Texas,
Inc.2—are irrelevant given Plaintiff’s allegations of funds being transferred from Company
accounts into non-Company accounts that are controlled by the Individual Defendants (see
Mapfre Ins. Co. of New York v Soltanov, 2019 NY Slip Op 30239[U], 5 [Sup Ct, NY County
2019] [“Plaintiffs sufficiently demonstrate that the bank records are material to the case because
they can shed light on the movement of funds, which is material in determining whether Moving
Defendants engaged in fraud”]). Finally, Requests 1, 2, and 3, which seek complete versions of
documents that Defendants produced in discovery in incomplete or illegible form, are granted. 3
The Court has considered the parties’ remaining arguments and finds them unavailing.
Accordingly, it is
2
These parties were dismissed from this case (see NYSCEF 140).
3
In her Opposition, Yasemin submits that she has withdrawn Request No. 20, which seeks
Signature Cards (NYSCEF 698 at 5), as well as her requests for records evidencing transfers of
funds into and out of certain accounts held by Billur (Requests No. 18, 19) (NYSCEF 698 at 14).
Further, Yasemin agreed to limit the Subpoena’s scope to January 1, 2015, to the present, and
allow for the redaction of Personally Identifiable Information (“PII”) pursuant to the Stipulation
and Order for the Production and Exchange of Confidential Information (see Parker Aff. at ¶ 18,
Ex. M; NYSCEF 91) (NYSCEF 698 at 6).
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ORDERED that Defendants’ motion to quash the Subpoena is denied, and Santander
Bank, N.A. is directed to comply with the Subpoena, subject to the restrictions described in
footnote 3 supra.
This constitutes the Decision and Order of the Court.
10/25/2022
DATE JOEL M. COHEN, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Preview
FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 840 RECEIVED NYSCEF: 10/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X YASEMIN TEKINER, INDEX NO. 657193/2020 Plaintiff, MOTION DATE 10/11/2022 -v- MOTION SEQ. NO. 035 BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC., GERMAN NEWS COMPANY, INC., GERMAN NEWS TEXAS, INC.,254-258 W. 35TH ST. LLC, BERRIN DECISION + ORDER ON TEKINER, GONCA TEKINER, BILLUR AKIPEK, ZEYNEP MOTION TEKINER, Defendants. -----------------------------------------------------------------------------------X HON. JOEL M. COHEN: The following e-filed documents, listed by NYSCEF document number (Motion 035) 688, 689, 690, 691, 692, 693, 694, 695, 696, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 765, 766 were read on this motion to QUASH SUBPOENA . Defendants Bremen House Inc., German News Company, Inc., Berrin Tekiner, Gonca Chelsea, and Billur Akipek (collectively, “Defendants”) move for an order (i) pursuant to CPLR 2304, to quash or narrow the subpoena duces tecum served by plaintiff Yasemin Tekiner on non- party Santander Bank, N.A. (the “Subpoena”) (NYSCEF 691); and (ii) for a protective order pursuant to CPLR § 3103, preventing Plaintiff from seeking irrelevant and immaterial information via the Subpoena. For the following reasons, Defendants’ motion to quash is denied. “A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable” (CPLR § 2304). It “should be made prior to the return date” (Santangello v People, 38 NY2d 536, 539 [1976] [internal citations omitted]), since 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 1 of 4 Motion No. 035 1 of 4 FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 840 RECEIVED NYSCEF: 10/25/2022 “[o]nce there has been compliance with the subpoena, [] a motion to quash or vacate no longer is available” (Brunswick Hosp. Ctr., Inc. v Hynes, 52 NY2d 333, 339 [1981]). Further, “[a]n application to quash a subpoena should be granted ‘[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious’ . . . or where the information sought is ‘utterly irrelevant to any proper inquiry’” (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014] [citation omitted]). “It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances” (id. at 39). First, contrary to Plaintiff’s arguments, Defendants have standing to object to this subpoena (M&T Bank Corp. v Moody’s Inv’rs Services, Inc., 191 AD3d 1288, 1290 [4th Dept 2021]; Tsunis Gasparis LLP v Ring, 74 Misc 3d 1206(A) [Sup Ct, Suffolk County 2022]). Second, Defendants’ procedural defects are not fatal. Although Defendants filed this application by notice of motion as opposed to by order to show cause as they were directed,1 it was Defendants that bore the risk that Santander Bank would comply with the Subpoena before their application was decided, which would render Defendants’ motion moot. However, Defendants have failed to satisfy their burden of demonstrating that the subpoena should be vacated. Defendants fail to adequately show how the requested bank records in Requests No. 7, 8, 9, 11, 12, 13, 15, 16, and 17—which seek records evidencing transfers of funds into and out of the accounts of the Company, and records evidencing transfers of funds into and out of the business accounts opened on July 29 and July 30, 2020 by the Individual 1 On September 15, 2022, Defendants sought a court conference, and during the conference with the Court’s law clerk, they were advised that if they wished to quash the subpoena, they should file an order to show cause before the return date of the subpoena, which was represented to the Court to be September 16, 2022. The parties seem to dispute whether September 15 or September 16 is the return date. In any event, Defendants filed their motion on September 16, 2022, and Plaintiff has not demonstrated any prejudice from this one-day discrepancy. 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 2 of 4 Motion No. 035 2 of 4 FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 840 RECEIVED NYSCEF: 10/25/2022 Defendants—are irrelevant to this litigation, given Plaintiff’s allegations of corporate waste, mismanagement, and misuse of funds by the named defendants. Furthermore, there is “no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source” (Kapon, 23 NY3d 32 at 38). Likewise, Defendants have not shown that Requests Nos. 5, 6, 10 and 14—which seek records evidencing transfers of funds into and out of the Bremen House managed account for non-parties 254-258 W. 35th Street, LLC, Bremen House Texas, Inc. and German News Texas, Inc.2—are irrelevant given Plaintiff’s allegations of funds being transferred from Company accounts into non-Company accounts that are controlled by the Individual Defendants (see Mapfre Ins. Co. of New York v Soltanov, 2019 NY Slip Op 30239[U], 5 [Sup Ct, NY County 2019] [“Plaintiffs sufficiently demonstrate that the bank records are material to the case because they can shed light on the movement of funds, which is material in determining whether Moving Defendants engaged in fraud”]). Finally, Requests 1, 2, and 3, which seek complete versions of documents that Defendants produced in discovery in incomplete or illegible form, are granted. 3 The Court has considered the parties’ remaining arguments and finds them unavailing. Accordingly, it is 2 These parties were dismissed from this case (see NYSCEF 140). 3 In her Opposition, Yasemin submits that she has withdrawn Request No. 20, which seeks Signature Cards (NYSCEF 698 at 5), as well as her requests for records evidencing transfers of funds into and out of certain accounts held by Billur (Requests No. 18, 19) (NYSCEF 698 at 14). Further, Yasemin agreed to limit the Subpoena’s scope to January 1, 2015, to the present, and allow for the redaction of Personally Identifiable Information (“PII”) pursuant to the Stipulation and Order for the Production and Exchange of Confidential Information (see Parker Aff. at ¶ 18, Ex. M; NYSCEF 91) (NYSCEF 698 at 6). 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 3 of 4 Motion No. 035 3 of 4 FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 840 RECEIVED NYSCEF: 10/25/2022 ORDERED that Defendants’ motion to quash the Subpoena is denied, and Santander Bank, N.A. is directed to comply with the Subpoena, subject to the restrictions described in footnote 3 supra. This constitutes the Decision and Order of the Court. 10/25/2022 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 4 of 4 Motion No. 035 4 of 4