Preview
FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 841 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 09/22/2022
-v-
MOTION SEQ. NO. 033
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 033) 660, 661, 662, 663,
664, 665, 686, 697
were read on this motion to DISMISS .
Defendants Bremen House Inc., German News Company, Inc., Berrin Tekiner (“Berrin”),
Gonca Chelsea (“Gonca”), and Billur Akipek (“Billur”) (collectively, “Defendants”) move to
dismiss the Twelfth Cause of Action in Plaintiff Yasemin Tekiner’s (“Yasemin”) Verified
Second Amended (“SAC”) with prejudice, pursuant to CPLR 3211(a)(1) and (a)(7). The
Twelfth Cause of Action alleges that Berrin, Gonca, and Billur aided and abetted breaches of
fiduciary duty (NYSCEF 548). For the following reasons, Defendants’ motion is granted in
part.
“When reviewing a defendant’s motion to dismiss a complaint for failure to state a cause
of action, a court must ‘give the complaint a liberal construction, accept the allegations as true
and provide plaintiffs with the benefit of every favorable inference’” (Nomura Home Equity
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Loan, Inc., Series 2006-FM2, by HSBC Bank USA, N.A. v Nomura Credit & Capital, Inc., 30
NY3d 572, 582 [2017] [citation omitted]).
Under Delaware law, “[a] a successful claim for aiding and abetting a breach of fiduciary
duty requires proof of four elements: ‘(1) the existence of a fiduciary relationship; (2) the
fiduciary breached its duty; (3) a defendant, who is not a fiduciary, knowingly participated in a
breach; and (4) damages to the plaintiff resulted from the concerted action of the fiduciary and
the nonfiduciary’” (Cargill, Inc. v JWH Special Circumstance LLC, 959 A2d 1096, 1125 [Del Ch
2008] [emphasis added]).
Yasemin’s claim against Billur must be dismissed. It is undisputed that Billur owed
Yasemin fiduciary duties as her trustee under the Yasemin Tekiner 2011 Descendants Trust (the
“Yasemin Trust”). Since an aiding and abetting a breach of fiduciary duty claim can only be
asserted against a non-fiduciary (Cargill, 959 A2d at 1125; Mesirov v Enbridge Energy Co., Inc.,
2018 WL 4182204, at *13 [Del Ch 2018]), and Yasemin concedes this point in her brief
(NYSCEF 686 at 4 n 3), the claim against Billur must be dismissed.
For the same reasons, Yasemin’s claim against Berrin is dismissed. While Yasemin
contends that “it is conceivable that . . . Berrin’s status as a protector would not be deemed
sufficient to amount to a fiduciary role” (NYSCEF 686 at 6), Berrin concedes the point in her
reply brief (NYSCEF 697 at 1). Furthermore, unlike in IMO Ronald J. Mount 2012 Irrevocable
Dynasty Tr. U/A/D December 5, 2012 (2017 WL 4082886, at *7 [Del Ch 2017]), where the court
held that plaintiff’s claim of breach of fiduciary duty against the trust protector failed because
“the Trust Instrument states that ‘[t]he Trust Protector, acting as such, shall serve in a non-
fiduciary capacity,’” Yasemin does not point to any language in the Trust documents that would
call Berrin’s fiduciary duties into question.
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Finally, Yasemin’s claim against Gonca remains. Defendants argue that Yasemin cannot
plead the “knowing participation” element of a claim for aiding and abetting a breach of
fiduciary. “This element is satisfied when the aider and abettor ‘act [s] with the knowledge that
the conduct advocated or assisted constitutes such a breach’” (In re Rural Metro Corp., 88 A3d
54, 97 [Del Ch 2014]). “Under Delaware law, one who knowingly participates with a fiduciary
in a breach of the latter's duty is liable to the beneficiary of the trust relationship” (Associated
Imports, Inc. v ASG Indus., Inc., 5953, 1984 WL 19833, at *12 [Del Ch 1984], affd sub nom.,
497 A2d 787 [Del 1985]). Plaintiff alleges that Berrin, Gonca, and Billur were all senior
executives in the Company’s business and that, at all times, they were aware of and participated
in any and all important business decisions, including decisions made regarding Yasemin and the
Yasemin Trust (NYSCEF 548 ¶ 164). Plaintiff specifically alleges that Gonca believed that
Plaintiff’s role in the Yasemin Trust and the Company’s business posed a threat to her ability to
continue self-dealing and advocated for Plaintiff to be stripped of her roles and powers; that
Gonca demanded that Plaintiff be removed as a Trustee of the Yasemin Trust and Berrin and
Billur agreed to remove her; that Gonca, Berrin, and Billur coordinated their efforts to illegally
retaliate against Plaintiff, including by coordinating a response to Plaintiff’s demand that Billur
authorize a shareholder dispute that resulted in her removal as Trustee from the Yasemin Trust;
and that Gonca personally sought to benefit from the breaches by solidifying her own power and
continuing her pattern of self-dealing (id.). These allegations are sufficient to allege a claim for
aiding and abetting a breach of fiduciary duty. Whether Yasemin can prove these allegations is a
matter to be resolved as the litigation proceeds.
Accordingly, it is
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ORDERED that Defendants’ motion to dismiss Yasemin’s Twelfth Cause of Action in
her Second Amended Complaint is granted in part, insofar as the claim alleged against Berrin
and Billur is dismissed, and otherwise denied.
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 DENIED X 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
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Preview
FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 841 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 09/22/2022 -v- MOTION SEQ. NO. 033 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 033) 660, 661, 662, 663, 664, 665, 686, 697 were read on this motion to DISMISS . Defendants Bremen House Inc., German News Company, Inc., Berrin Tekiner (“Berrin”), Gonca Chelsea (“Gonca”), and Billur Akipek (“Billur”) (collectively, “Defendants”) move to dismiss the Twelfth Cause of Action in Plaintiff Yasemin Tekiner’s (“Yasemin”) Verified Second Amended (“SAC”) with prejudice, pursuant to CPLR 3211(a)(1) and (a)(7). The Twelfth Cause of Action alleges that Berrin, Gonca, and Billur aided and abetted breaches of fiduciary duty (NYSCEF 548). For the following reasons, Defendants’ motion is granted in part. “When reviewing a defendant’s motion to dismiss a complaint for failure to state a cause of action, a court must ‘give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference’” (Nomura Home Equity 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 1 of 4 Motion No. 033 1 of 4 FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 841 RECEIVED NYSCEF: 10/25/2022 Loan, Inc., Series 2006-FM2, by HSBC Bank USA, N.A. v Nomura Credit & Capital, Inc., 30 NY3d 572, 582 [2017] [citation omitted]). Under Delaware law, “[a] a successful claim for aiding and abetting a breach of fiduciary duty requires proof of four elements: ‘(1) the existence of a fiduciary relationship; (2) the fiduciary breached its duty; (3) a defendant, who is not a fiduciary, knowingly participated in a breach; and (4) damages to the plaintiff resulted from the concerted action of the fiduciary and the nonfiduciary’” (Cargill, Inc. v JWH Special Circumstance LLC, 959 A2d 1096, 1125 [Del Ch 2008] [emphasis added]). Yasemin’s claim against Billur must be dismissed. It is undisputed that Billur owed Yasemin fiduciary duties as her trustee under the Yasemin Tekiner 2011 Descendants Trust (the “Yasemin Trust”). Since an aiding and abetting a breach of fiduciary duty claim can only be asserted against a non-fiduciary (Cargill, 959 A2d at 1125; Mesirov v Enbridge Energy Co., Inc., 2018 WL 4182204, at *13 [Del Ch 2018]), and Yasemin concedes this point in her brief (NYSCEF 686 at 4 n 3), the claim against Billur must be dismissed. For the same reasons, Yasemin’s claim against Berrin is dismissed. While Yasemin contends that “it is conceivable that . . . Berrin’s status as a protector would not be deemed sufficient to amount to a fiduciary role” (NYSCEF 686 at 6), Berrin concedes the point in her reply brief (NYSCEF 697 at 1). Furthermore, unlike in IMO Ronald J. Mount 2012 Irrevocable Dynasty Tr. U/A/D December 5, 2012 (2017 WL 4082886, at *7 [Del Ch 2017]), where the court held that plaintiff’s claim of breach of fiduciary duty against the trust protector failed because “the Trust Instrument states that ‘[t]he Trust Protector, acting as such, shall serve in a non- fiduciary capacity,’” Yasemin does not point to any language in the Trust documents that would call Berrin’s fiduciary duties into question. 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 2 of 4 Motion No. 033 2 of 4 FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 841 RECEIVED NYSCEF: 10/25/2022 Finally, Yasemin’s claim against Gonca remains. Defendants argue that Yasemin cannot plead the “knowing participation” element of a claim for aiding and abetting a breach of fiduciary. “This element is satisfied when the aider and abettor ‘act [s] with the knowledge that the conduct advocated or assisted constitutes such a breach’” (In re Rural Metro Corp., 88 A3d 54, 97 [Del Ch 2014]). “Under Delaware law, one who knowingly participates with a fiduciary in a breach of the latter's duty is liable to the beneficiary of the trust relationship” (Associated Imports, Inc. v ASG Indus., Inc., 5953, 1984 WL 19833, at *12 [Del Ch 1984], affd sub nom., 497 A2d 787 [Del 1985]). Plaintiff alleges that Berrin, Gonca, and Billur were all senior executives in the Company’s business and that, at all times, they were aware of and participated in any and all important business decisions, including decisions made regarding Yasemin and the Yasemin Trust (NYSCEF 548 ¶ 164). Plaintiff specifically alleges that Gonca believed that Plaintiff’s role in the Yasemin Trust and the Company’s business posed a threat to her ability to continue self-dealing and advocated for Plaintiff to be stripped of her roles and powers; that Gonca demanded that Plaintiff be removed as a Trustee of the Yasemin Trust and Berrin and Billur agreed to remove her; that Gonca, Berrin, and Billur coordinated their efforts to illegally retaliate against Plaintiff, including by coordinating a response to Plaintiff’s demand that Billur authorize a shareholder dispute that resulted in her removal as Trustee from the Yasemin Trust; and that Gonca personally sought to benefit from the breaches by solidifying her own power and continuing her pattern of self-dealing (id.). These allegations are sufficient to allege a claim for aiding and abetting a breach of fiduciary duty. Whether Yasemin can prove these allegations is a matter to be resolved as the litigation proceeds. Accordingly, it is 657193/2020 TEKINER, YASEMIN vs. BREMEN HOUSE INC. Page 3 of 4 Motion No. 033 3 of 4 FILED: NEW YORK COUNTY CLERK 10/26/2022 11:15 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 841 RECEIVED NYSCEF: 10/25/2022 ORDERED that Defendants’ motion to dismiss Yasemin’s Twelfth Cause of Action in her Second Amended Complaint is granted in part, insofar as the claim alleged against Berrin and Billur is dismissed, and otherwise denied. 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 DENIED X 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. 033 4 of 4