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FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COMMERCIAL DIVISION, NEW YORK COUNTY
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner
2011 Descendants Trust and derivatively as Index No. 657193/2020
a holder of equitable interests in a
shareholder or a member of the Company Motion Seq. No.:
Defendants,
AFFIRMATION OF
Plaintiff, STEPHEN P. YOUNGER
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., 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-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Zeynep Tekiner 2011
Descendants Trust,
Defendants.
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STEPHEN P. YOUNGER, Esq., an attorney duly admitted to practice before the Courts
of the State of New York, affirms under the penalty of perjury, pursuant to CPLR § 2106 as
follows:
1. I am a member of the law firm Foley Hoag LLP, attorneys for Plaintiff Yasemin
Tekiner (“Plaintiff” or “Yasemin”) in the above-captioned matter. I submit this affirmation in
support of Yasemin’s Motion to Compel Records and Depositions pursuant to CPLR § 3124.
2. I am fully familiar with the facts and circumstances of this action as set forth herein
by virtue of my personal involvement as counsel and a review of the case files.
3. Yasemin is moving to compel because, despite the Court’s orders denying
Defendants’ motions to quash Plaintiff’s subpoenas and Plaintiff’s multiple communications to
Defendants and various third parties, Plaintiff still awaits critical bank records and documents and
has been unable to schedule important depositions.
4. The scope of discovery is governed by CPLR § 3101(a), which permits broad party
discovery of “all matter material and necessary in the prosecution or defense of an action.” This
standard has been interpreted to “include evidence required for trial preparation as well as matter
that may lead to the disclosure of admissible proof.” Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d
611, 611-12 (2d Dep’t 2011) (citing Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulance, 226
A.D.2d 175, 175-76 (1st Dep’t 1996)). CPLR § 3124 further provides that when a party fails to
comply with a request or demand, the party seeking disclosure may move to compel a response.
The standard for compelling discovery under CPLR § 3124 is a determination of whether the
“plaintiff's requests seek material and necessary information” and "would result in the disclosure
of relevant evidence and are reasonably calculated to lead to the discovery of relevant
information.” O'Halloran v. Metropolitan Trans. Auth., 169 A.D.3d 556, 557 (1st Dep’t 2019).
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This matter involves the service of subpoenas on nonparties and pursuant to CPLR § 3101(a)(4),
“the material and necessary standard adopted by the First and Fourth Departments is the
appropriate one and is in keeping with this state's policy of liberal discovery … so long as the
disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the
nonparty.” Matter of Kapon v. Koch, 23 N.Y.3d 32, 34 (2014).
5. Yasemin hereby incorporates by reference herein Plaintiffs’ December 24, 2022
motion to take post-Note of Issue discovery, granting a negative inference against Defendants,
and, alternatively, for a case management conference and/or to appoint a special discovery master.
(See NYSCEF Doc. Nos. 973-979.)
Third-Party Subpoenas and Depositions of Paul Schwartzman, Christiana Trust, and
Goldberg Weprin Finkel Goldstein LLP (“Goldberg Weprin”)
A. Paul Schwartzman
6. On June 25, 2021, Yasemin served a properly noticed subpoena upon Paul
Schwartzman for the production of documents and for his deposition.
7. On June 6, 2022, Defendants moved to quash Yasemin’s subpoena to
Schwartzman. (See NYSCEF Doc. No. 397.)
8. But on August 17, 2022, the Court denied Defendants’ motion to quash Yasemin’s
subpoena to Schwartzman. (See NYSCEF Doc. No. 681.)
9. The next day, Yasemin wrote to Schwartzman, enclosing the Court’s order and
requesting that he produce any non-corporate documents in his possession in response to the
subpoena and advise as to his availability for a deposition in September. A true and accurate copy
of this letter is attached hereto as Exhibit A.
10. On September 21, 2022, after initially being unresponsive, Mr. Schwartzman
advised that he would be available for deposition “after October 15th.” Consequently, on
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September 23, 2022, Yasemin advised Mr. Schwartzman that we would proceed with his
deposition on October 17th. A true and accurate copy of this correspondence is attached hereto as
Exhibit B.
11. On October 14, 2022, Yasemin advised Mr. Schwartzman that, because another
deposition was now scheduled for October 17th – i.e., Zeynep Tekiner’s (“Zeynep”) deposition –
Plaintiff needed to move the deposition to later in October. A true and accurate copy of this
correspondence is attached hereto as Exhibit C.
12. Mr. Schwartzman failed to respond and has failed to respond to Plaintiff’s multiple
follow-up communications. A true and accurate copy of this correspondence is attached hereto as
Exhibit D. In addition, Mr. Schwartzman has not produced any documents.
13. As set forth in Yasemin’s reply in further support of her request for a special
discovery master, due to Defendants’ treatment of Mr. Schwartzman, he fears retribution if
deposed.
14. In light of Mr. Schwartzman’s non-responsiveness, Plaintiff must now move to
compel Schwartzman’s response.
B. Christiana Trust
15. On September 2, 2022, Yasemin served a properly noticed subpoena upon
Christiana Trust—i.e., the corporate trustee for both Yasemin’s and Zeynep’s 2011 trusts—for the
production of documents and for a deposition, to which neither Christiana Trust nor Defendants
objected.
16. On October 7, 2022, WSFS Bank (“WSFS”) responded on behalf of the
Christiana Trust to the subpoena by producing documents, but WSFS produced almost no
emails.
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17. WSFS repeatedly promised to produce responsive emails, but they have not yet
produced all responsive emails, despite multiple follow-up communications.
18. In light of WSFS’s non-responsiveness, Plaintiff must now move to compel
WSFS’s response.
C. Goldberg Weprin
19. On October 26, 2022, Yasemin served a properly noticed subpoena upon Goldberg
Weprin for the production of documents, to which neither Goldberg Weprin nor Defendants
objected.
20. Goldberg Weprin’s response was due November 18, 2022, but, despite multiple
follow-up communications by Yasemin (both telephonic and written), Goldberg Weprin has
refused to comply with the subpoena. A true and accurate copy of this correspondence is attached
hereto as Exhibit E.
21. In light of Goldberg Weprin’s non-responsiveness, Plaintiff must now move to
compel Goldberg Weprin’s response.
Defendants’ Refusal to Produce Bank Records
22. Defendants have consistently refused to produce the relevant Santander bank
records during discovery. Nor have they done so in response to Plaintiffs’ multiple books-and-
records requests – notwithstanding Billur’s promise in her affidavit that Defendants were
“committed to provid[ing] Yasemin and Zeynep access to all the books and records of the
Company.” (NYSCEF Doc. No. 654, para. 8.)
23. On August 9, 2022, Yasemin served a properly noticed subpoena upon Santander
Bank (“Santander”) for the production of documents. A true and accurate copy of this
correspondence is attached hereto as Exhibit F.
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24. Santander did not object to the subpoena, but on September 16, 2022, Defendants
moved to quash Yasemin’s subpoena to Santander. (See NYSCEF Doc. Nos. 688-696.)
25. On October 5, 2022—and only several hours after Plaintiffs filed their Order to
Show Cause to Appoint a Special Discovery Master—Billur provided to Yasemin, as part of
Plaintiffs’ “books and records” request response, a limited and heavily redacted set of Santander
bank statements from a single Company account, not as part of the discovery process, but during
corporate record inspection. Those documents were startling. They showed $3 million dollars of
diverted funds. A true and accurate copy of this production is attached hereto as Exhibit G.
26. For example, last Spring Defendants wanted to sell the Company’s Tanglewylde
house in Bronxville. Plaintiffs had no objection to the sale. They simply wanted to know how
Defendants intended to use the sale proceeds. Plaintiffs tried to notice a board meeting and
again, could not get one. On July 1, 2022, Defendants’ counsel from Norton Rose represented to
the Court that the Tanglewylde proceeds were not going to the Individual Defendants, either
“directly or indirectly.” (See NYSCEF Doc. No. 657, at 26.) But $1 million dollars had already
been transferred to Berrin. (See NYSCEF Doc. No. 806, 813.) The very next week, Norton
Rose resigned from this case. Subsequently, Pryor Cashman made multiple representations that:
(a) Defendants would include Plaintiffs on all e-mails that relate to (1) operations of the
Company for any material events, and/or (2) significant matters regarding property sales; (b)
“material events,” which were those that exceeded $50,000: and (c) nothing other than
operational expenses will go out of the Company from the Tanglewylde proceeds. (See
NYSCEF Doc. No. 834.) This was false.
27. Bank records show that in the middle of September, $3.5 million dollars came
into the Company’s Santander bank account, representing the sale proceeds from Tanglewylde.
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Just two weeks later, Berrin, as Company Chairperson, transferred $1 million dollars to her
trust’s bank account. This was directly counter to the representations made by both Norton Rose
and, later, Pryor Cashman, but consistent with Berrin’s belief that, as she testified at her
deposition, she had a right to take the money.
28. In addition to the above transfers, Plaintiffs have ascertained from the few bank
records they have received that there was another $1 million dollar transfer that happened after
the sale of the Company’s Georgetown house in Greenwich. Berrin claims that she bought the
Georgetown house using her pension account – despite transactional records to the contrary.
According to Berrin, “[i]n Fall 2020, I sold 15 Brookby Road in Scarsdale and purchased a
smaller home in Greenwich, Connecticut (5 Georgetowne North), which was less expensive and
had lower property taxes. While 5 Georgetowne North was registered in Bremen House’s name,
I funded the purchase from my own pension.” (See NYSCEF Doc. No. 225, para. 30.) But
Gonca contradicted Berrin at her October 12, 2022 deposition, stating that the Company owned
that house. A true and accurate copy of the transcript excerpt is attached hereto as Exhibit H.
Thus, Berrin had pocketed another $1 million dollars from the Company coffers from that sale.
29. Plaintiffs moved to disqualify Billur as trustee of Zeynep’s and Yasemin’s trusts
because Billur was beholden to Berrin, rather than to Zeynep and Yasemin. Further, the trusts
were set up in a way so that Berrin could control the money, funds, and everything else about the
Company. Clearly, Zeynep’s and Yasemin’s lives were being controlled by Billur and Berrin.
30. On October 25, 2022, the Court denied Defendants’ motion to quash Plaintiff’s
subpoena to Santander. (NYSCEF Doc. No. 840.)
31. The next day, Yasemin wrote to Santander enclosing the Court order and requesting
the production of the subpoenaed documents.
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32. On November 8, 2022, when Santander finally responded to the subpoena, they
produced some (but not all) of the requested banking records.
33. On November 22 and 30, 2022, the parties exchanged Rule 14 letters on this
issue.
34. On December 5, 2022, Yasemin wrote to Santander to identify the deficiencies in
their partial production, which raised more questions than answers. For instance, the production
included records from only one company, and showed nearly $7 million in unaccounted-for
funds between January 2021 and September 2022, including items made out to cash or to
redacted checking accounts. A true and accurate copy of this letter is attached hereto as Exhibit
I.
35. On December 6, 2022, Santander wrote to Yasemin that they would “get started
on this.”
36. On December 20, 2022, Yasemin sent a follow-up email inquiring as to the status
of the production and received an automatic out-of-the-office message that the individual
Plaintiff had been communicating with would be out of the office until December 27, 2022.
37. On December 23, 2022, Yasemin sent another follow-up email requesting that
Santander provide the remaining production by COB. Santander responded that they would
address the production after December 27, 2022.
38. Accordingly, Santander has not yet provided the balance of the subpoenaed
documents and so, Plaintiff must now move to compel Santander to produce the balance of the
missing documents. 1
Phil Michaels and Allen Beck Refuse to Produce Any Documents in Response to Their
Subpoenas or Appear for Their Depositions
1
In the morning of December 27, Santander responded to Yasemin’s December 20th e-mail, but Plaintiffs have not
had the opportunity to review this response in any detail.
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39. On September 19, 2022, Plaintiff served Phil Michaels (Company and personal
counsel from Norton Rose) and Allen Beck (Company accountant) subpoenas to produce
documents and, simultaneously, noticed them for depositions. True and accurate copies of these
communications are attached hereto as Exhibit J and Exhibit K, respectively.
40. Mr. Michaels and Mr. Beck both likely have knowledge and documentary record
of Defendants’ malfeasance and self-dealing.
41. In early October 2022, Defendants’ counsel advised Yasemin that they were
accepting service of Yasemin’s subpoenas to Mr. Michaels and Mr. Beck for documents and
depositions. A true and accurate copy of this communication is attached hereto as Exhibit L.
42. However, Defendants’ counsel responded to the subpoenas on October 27, 2022 by
objecting to every single document request and refusing to produce a single document. A true and
accurate copy of Defendants’ response is attached hereto as Exhibit M.
43. In those responses, Defendants refused to produce a single document and made
baseless objections – including that these nonparties would not produce documents because
Defendants had already produced documents. Even if that were true, however, Mr. Michaels and
Mr. Beck have independent obligations to respond to these subpoenas. Defendants’ woefully
inadequate document production does not obviate Michaels’s and Beck’s obligations.
44. Further, Mr. Michaels asserted a baseless, blanket objection that responsive
documents were privileged, notwithstanding the Court’s August 17, 2022 Order rejecting that
same blanket assertion. Michaels even admitted documents existed yet made no commitment to
search for or produce them.
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45. On November 10, 2022, the parties discussed these responses and objections with
the Court. And on November 22 and 30, 2022, the parties exchanged Rule 14 letters on this
issue.
46. On December 5, 2022, Defendants’ counsel represented to the Court that they
would amend their responses and objections to the subpoenas.
47. But on December 12, 2022, Plaintiffs received these purportedly revised
responses and objections, which appear to be identical to the ones Defendants previously served
on October 27, 2022. Accordingly, Plaintiffs must now move to compel the production of
documents requested in the subpoenas to Michaels and Beck. Once that issue has been resolved,
Plaintiffs intend to proceed with their depositions.
Re-depositions of Individual Defendant Billur Akipek
48. On October 27, 2022, the Court advised that Plaintiffs had the right to re-depose
the individual defendants – and rejected Defendants’ attempt to place an “arbitrary limit” upon
the length of those depositions. (NYSCEF Doc. No. 857, at 37.)
49. On December 21, 2022, Defendants offered only Berrin and Gonca for three-hour
depositions on December 27th, and are refusing to reproduce Billur for her deposition – even
though many of the thousands of documents that Defendants previously withheld as privileged
and only produced in September and October of 2022 involved Billur.
50. Accordingly, Plaintiffs must now move to compel Billur’s deposition.
51. Absent a Court Order compelling Defendants and the previously mentioned third
parties to immediately produce all of the documents responsive to Plaintiff’s subpoenas,
Defendants will continue to advance their strategy of delay and obfuscation. Plaintiff has been
and will be significantly prejudiced by Defendants’ actions.
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WHEREFORE, Plaintiff respectfully requests that the Court order the immediate
production of all aforementioned records and depositions.
Dated: New York, New York
December 27, 2022
Stephen P. Younger
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CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17
I hereby certify that the foregoing Affirmation complies with Rule 17 of subdivision (g) of
section 202.70 of the Uniform Rules for the Supreme Court and County Court (Rules of Practice
for the Commercial Division of the Supreme Court), and has a word count of less than 7,000.
Dated: December 27, 2022
New York, New York
Stephen P. Younger
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Preview
FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION, NEW YORK COUNTY YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as Index No. 657193/2020 a holder of equitable interests in a shareholder or a member of the Company Motion Seq. No.: Defendants, AFFIRMATION OF Plaintiff, STEPHEN P. YOUNGER -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., 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- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, Defendants. 1 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 STEPHEN P. YOUNGER, Esq., an attorney duly admitted to practice before the Courts of the State of New York, affirms under the penalty of perjury, pursuant to CPLR § 2106 as follows: 1. I am a member of the law firm Foley Hoag LLP, attorneys for Plaintiff Yasemin Tekiner (“Plaintiff” or “Yasemin”) in the above-captioned matter. I submit this affirmation in support of Yasemin’s Motion to Compel Records and Depositions pursuant to CPLR § 3124. 2. I am fully familiar with the facts and circumstances of this action as set forth herein by virtue of my personal involvement as counsel and a review of the case files. 3. Yasemin is moving to compel because, despite the Court’s orders denying Defendants’ motions to quash Plaintiff’s subpoenas and Plaintiff’s multiple communications to Defendants and various third parties, Plaintiff still awaits critical bank records and documents and has been unable to schedule important depositions. 4. The scope of discovery is governed by CPLR § 3101(a), which permits broad party discovery of “all matter material and necessary in the prosecution or defense of an action.” This standard has been interpreted to “include evidence required for trial preparation as well as matter that may lead to the disclosure of admissible proof.” Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 611-12 (2d Dep’t 2011) (citing Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulance, 226 A.D.2d 175, 175-76 (1st Dep’t 1996)). CPLR § 3124 further provides that when a party fails to comply with a request or demand, the party seeking disclosure may move to compel a response. The standard for compelling discovery under CPLR § 3124 is a determination of whether the “plaintiff's requests seek material and necessary information” and "would result in the disclosure of relevant evidence and are reasonably calculated to lead to the discovery of relevant information.” O'Halloran v. Metropolitan Trans. Auth., 169 A.D.3d 556, 557 (1st Dep’t 2019). 2 2 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 This matter involves the service of subpoenas on nonparties and pursuant to CPLR § 3101(a)(4), “the material and necessary standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state's policy of liberal discovery … so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Matter of Kapon v. Koch, 23 N.Y.3d 32, 34 (2014). 5. Yasemin hereby incorporates by reference herein Plaintiffs’ December 24, 2022 motion to take post-Note of Issue discovery, granting a negative inference against Defendants, and, alternatively, for a case management conference and/or to appoint a special discovery master. (See NYSCEF Doc. Nos. 973-979.) Third-Party Subpoenas and Depositions of Paul Schwartzman, Christiana Trust, and Goldberg Weprin Finkel Goldstein LLP (“Goldberg Weprin”) A. Paul Schwartzman 6. On June 25, 2021, Yasemin served a properly noticed subpoena upon Paul Schwartzman for the production of documents and for his deposition. 7. On June 6, 2022, Defendants moved to quash Yasemin’s subpoena to Schwartzman. (See NYSCEF Doc. No. 397.) 8. But on August 17, 2022, the Court denied Defendants’ motion to quash Yasemin’s subpoena to Schwartzman. (See NYSCEF Doc. No. 681.) 9. The next day, Yasemin wrote to Schwartzman, enclosing the Court’s order and requesting that he produce any non-corporate documents in his possession in response to the subpoena and advise as to his availability for a deposition in September. A true and accurate copy of this letter is attached hereto as Exhibit A. 10. On September 21, 2022, after initially being unresponsive, Mr. Schwartzman advised that he would be available for deposition “after October 15th.” Consequently, on 3 3 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 September 23, 2022, Yasemin advised Mr. Schwartzman that we would proceed with his deposition on October 17th. A true and accurate copy of this correspondence is attached hereto as Exhibit B. 11. On October 14, 2022, Yasemin advised Mr. Schwartzman that, because another deposition was now scheduled for October 17th – i.e., Zeynep Tekiner’s (“Zeynep”) deposition – Plaintiff needed to move the deposition to later in October. A true and accurate copy of this correspondence is attached hereto as Exhibit C. 12. Mr. Schwartzman failed to respond and has failed to respond to Plaintiff’s multiple follow-up communications. A true and accurate copy of this correspondence is attached hereto as Exhibit D. In addition, Mr. Schwartzman has not produced any documents. 13. As set forth in Yasemin’s reply in further support of her request for a special discovery master, due to Defendants’ treatment of Mr. Schwartzman, he fears retribution if deposed. 14. In light of Mr. Schwartzman’s non-responsiveness, Plaintiff must now move to compel Schwartzman’s response. B. Christiana Trust 15. On September 2, 2022, Yasemin served a properly noticed subpoena upon Christiana Trust—i.e., the corporate trustee for both Yasemin’s and Zeynep’s 2011 trusts—for the production of documents and for a deposition, to which neither Christiana Trust nor Defendants objected. 16. On October 7, 2022, WSFS Bank (“WSFS”) responded on behalf of the Christiana Trust to the subpoena by producing documents, but WSFS produced almost no emails. 4 4 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 17. WSFS repeatedly promised to produce responsive emails, but they have not yet produced all responsive emails, despite multiple follow-up communications. 18. In light of WSFS’s non-responsiveness, Plaintiff must now move to compel WSFS’s response. C. Goldberg Weprin 19. On October 26, 2022, Yasemin served a properly noticed subpoena upon Goldberg Weprin for the production of documents, to which neither Goldberg Weprin nor Defendants objected. 20. Goldberg Weprin’s response was due November 18, 2022, but, despite multiple follow-up communications by Yasemin (both telephonic and written), Goldberg Weprin has refused to comply with the subpoena. A true and accurate copy of this correspondence is attached hereto as Exhibit E. 21. In light of Goldberg Weprin’s non-responsiveness, Plaintiff must now move to compel Goldberg Weprin’s response. Defendants’ Refusal to Produce Bank Records 22. Defendants have consistently refused to produce the relevant Santander bank records during discovery. Nor have they done so in response to Plaintiffs’ multiple books-and- records requests – notwithstanding Billur’s promise in her affidavit that Defendants were “committed to provid[ing] Yasemin and Zeynep access to all the books and records of the Company.” (NYSCEF Doc. No. 654, para. 8.) 23. On August 9, 2022, Yasemin served a properly noticed subpoena upon Santander Bank (“Santander”) for the production of documents. A true and accurate copy of this correspondence is attached hereto as Exhibit F. 5 5 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 24. Santander did not object to the subpoena, but on September 16, 2022, Defendants moved to quash Yasemin’s subpoena to Santander. (See NYSCEF Doc. Nos. 688-696.) 25. On October 5, 2022—and only several hours after Plaintiffs filed their Order to Show Cause to Appoint a Special Discovery Master—Billur provided to Yasemin, as part of Plaintiffs’ “books and records” request response, a limited and heavily redacted set of Santander bank statements from a single Company account, not as part of the discovery process, but during corporate record inspection. Those documents were startling. They showed $3 million dollars of diverted funds. A true and accurate copy of this production is attached hereto as Exhibit G. 26. For example, last Spring Defendants wanted to sell the Company’s Tanglewylde house in Bronxville. Plaintiffs had no objection to the sale. They simply wanted to know how Defendants intended to use the sale proceeds. Plaintiffs tried to notice a board meeting and again, could not get one. On July 1, 2022, Defendants’ counsel from Norton Rose represented to the Court that the Tanglewylde proceeds were not going to the Individual Defendants, either “directly or indirectly.” (See NYSCEF Doc. No. 657, at 26.) But $1 million dollars had already been transferred to Berrin. (See NYSCEF Doc. No. 806, 813.) The very next week, Norton Rose resigned from this case. Subsequently, Pryor Cashman made multiple representations that: (a) Defendants would include Plaintiffs on all e-mails that relate to (1) operations of the Company for any material events, and/or (2) significant matters regarding property sales; (b) “material events,” which were those that exceeded $50,000: and (c) nothing other than operational expenses will go out of the Company from the Tanglewylde proceeds. (See NYSCEF Doc. No. 834.) This was false. 27. Bank records show that in the middle of September, $3.5 million dollars came into the Company’s Santander bank account, representing the sale proceeds from Tanglewylde. 6 6 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 Just two weeks later, Berrin, as Company Chairperson, transferred $1 million dollars to her trust’s bank account. This was directly counter to the representations made by both Norton Rose and, later, Pryor Cashman, but consistent with Berrin’s belief that, as she testified at her deposition, she had a right to take the money. 28. In addition to the above transfers, Plaintiffs have ascertained from the few bank records they have received that there was another $1 million dollar transfer that happened after the sale of the Company’s Georgetown house in Greenwich. Berrin claims that she bought the Georgetown house using her pension account – despite transactional records to the contrary. According to Berrin, “[i]n Fall 2020, I sold 15 Brookby Road in Scarsdale and purchased a smaller home in Greenwich, Connecticut (5 Georgetowne North), which was less expensive and had lower property taxes. While 5 Georgetowne North was registered in Bremen House’s name, I funded the purchase from my own pension.” (See NYSCEF Doc. No. 225, para. 30.) But Gonca contradicted Berrin at her October 12, 2022 deposition, stating that the Company owned that house. A true and accurate copy of the transcript excerpt is attached hereto as Exhibit H. Thus, Berrin had pocketed another $1 million dollars from the Company coffers from that sale. 29. Plaintiffs moved to disqualify Billur as trustee of Zeynep’s and Yasemin’s trusts because Billur was beholden to Berrin, rather than to Zeynep and Yasemin. Further, the trusts were set up in a way so that Berrin could control the money, funds, and everything else about the Company. Clearly, Zeynep’s and Yasemin’s lives were being controlled by Billur and Berrin. 30. On October 25, 2022, the Court denied Defendants’ motion to quash Plaintiff’s subpoena to Santander. (NYSCEF Doc. No. 840.) 31. The next day, Yasemin wrote to Santander enclosing the Court order and requesting the production of the subpoenaed documents. 7 7 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 32. On November 8, 2022, when Santander finally responded to the subpoena, they produced some (but not all) of the requested banking records. 33. On November 22 and 30, 2022, the parties exchanged Rule 14 letters on this issue. 34. On December 5, 2022, Yasemin wrote to Santander to identify the deficiencies in their partial production, which raised more questions than answers. For instance, the production included records from only one company, and showed nearly $7 million in unaccounted-for funds between January 2021 and September 2022, including items made out to cash or to redacted checking accounts. A true and accurate copy of this letter is attached hereto as Exhibit I. 35. On December 6, 2022, Santander wrote to Yasemin that they would “get started on this.” 36. On December 20, 2022, Yasemin sent a follow-up email inquiring as to the status of the production and received an automatic out-of-the-office message that the individual Plaintiff had been communicating with would be out of the office until December 27, 2022. 37. On December 23, 2022, Yasemin sent another follow-up email requesting that Santander provide the remaining production by COB. Santander responded that they would address the production after December 27, 2022. 38. Accordingly, Santander has not yet provided the balance of the subpoenaed documents and so, Plaintiff must now move to compel Santander to produce the balance of the missing documents. 1 Phil Michaels and Allen Beck Refuse to Produce Any Documents in Response to Their Subpoenas or Appear for Their Depositions 1 In the morning of December 27, Santander responded to Yasemin’s December 20th e-mail, but Plaintiffs have not had the opportunity to review this response in any detail. 8 8 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 39. On September 19, 2022, Plaintiff served Phil Michaels (Company and personal counsel from Norton Rose) and Allen Beck (Company accountant) subpoenas to produce documents and, simultaneously, noticed them for depositions. True and accurate copies of these communications are attached hereto as Exhibit J and Exhibit K, respectively. 40. Mr. Michaels and Mr. Beck both likely have knowledge and documentary record of Defendants’ malfeasance and self-dealing. 41. In early October 2022, Defendants’ counsel advised Yasemin that they were accepting service of Yasemin’s subpoenas to Mr. Michaels and Mr. Beck for documents and depositions. A true and accurate copy of this communication is attached hereto as Exhibit L. 42. However, Defendants’ counsel responded to the subpoenas on October 27, 2022 by objecting to every single document request and refusing to produce a single document. A true and accurate copy of Defendants’ response is attached hereto as Exhibit M. 43. In those responses, Defendants refused to produce a single document and made baseless objections – including that these nonparties would not produce documents because Defendants had already produced documents. Even if that were true, however, Mr. Michaels and Mr. Beck have independent obligations to respond to these subpoenas. Defendants’ woefully inadequate document production does not obviate Michaels’s and Beck’s obligations. 44. Further, Mr. Michaels asserted a baseless, blanket objection that responsive documents were privileged, notwithstanding the Court’s August 17, 2022 Order rejecting that same blanket assertion. Michaels even admitted documents existed yet made no commitment to search for or produce them. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 45. On November 10, 2022, the parties discussed these responses and objections with the Court. And on November 22 and 30, 2022, the parties exchanged Rule 14 letters on this issue. 46. On December 5, 2022, Defendants’ counsel represented to the Court that they would amend their responses and objections to the subpoenas. 47. But on December 12, 2022, Plaintiffs received these purportedly revised responses and objections, which appear to be identical to the ones Defendants previously served on October 27, 2022. Accordingly, Plaintiffs must now move to compel the production of documents requested in the subpoenas to Michaels and Beck. Once that issue has been resolved, Plaintiffs intend to proceed with their depositions. Re-depositions of Individual Defendant Billur Akipek 48. On October 27, 2022, the Court advised that Plaintiffs had the right to re-depose the individual defendants – and rejected Defendants’ attempt to place an “arbitrary limit” upon the length of those depositions. (NYSCEF Doc. No. 857, at 37.) 49. On December 21, 2022, Defendants offered only Berrin and Gonca for three-hour depositions on December 27th, and are refusing to reproduce Billur for her deposition – even though many of the thousands of documents that Defendants previously withheld as privileged and only produced in September and October of 2022 involved Billur. 50. Accordingly, Plaintiffs must now move to compel Billur’s deposition. 51. Absent a Court Order compelling Defendants and the previously mentioned third parties to immediately produce all of the documents responsive to Plaintiff’s subpoenas, Defendants will continue to advance their strategy of delay and obfuscation. Plaintiff has been and will be significantly prejudiced by Defendants’ actions. 10 10 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 WHEREFORE, Plaintiff respectfully requests that the Court order the immediate production of all aforementioned records and depositions. Dated: New York, New York December 27, 2022 Stephen P. Younger 11 11 of 12 FILED: NEW YORK COUNTY CLERK 12/27/2022 03:59 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 981 RECEIVED NYSCEF: 12/27/2022 CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17 I hereby certify that the foregoing Affirmation complies with Rule 17 of subdivision (g) of section 202.70 of the Uniform Rules for the Supreme Court and County Court (Rules of Practice for the Commercial Division of the Supreme Court), and has a word count of less than 7,000. Dated: December 27, 2022 New York, New York Stephen P. Younger 12 12 of 12