Preview
FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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
Defendants, Motion Sequence No. ___
Plaintiff,
-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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ZEYNEP TEKINER’S MEMORANDUM OF LAW IN SUPPORT OF HER
MOTION FOR AN ORDER GRANTING LEAVE TO AMEND HER FIRST
AMENDED COMPLAINT TO STATE A CAUSE OF ACTION AGAINST
GONCA TEKINER FOR AIDING AND ABETTING BREACH OF FIDUCIARY DUTY
KAHN & GOLDBERG, LLP
Michele Kahn, Esq.
Attorneys for Plaintiff Zeynep Tekiner
555 Fifth Avenue, 14th Floor
New York, New York 10017
(212) 687-5066
mk@kahngoldberg.com
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TABLE OF CONTENTS
I. Preliminary Statement . . . . . . . . . . . ...................................1
II. Facts and Background . . . . . . . . . . . ...................................1
III. Argument . . . . . . . . . . ..............................................5
A. Leave to Amend is Liberally Granted ............................5
B. There is No Prejudice or Unfair Surprise . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. The Amendment and the Motion to Amend are Timely ..............7
IV. Conclusion .......................................................8
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TABLE OF AUTHORITIES
Beverage Mktg. USA v S. Beach Bev. Co., 20 AD3d 439, 440 [2d Dept 2005]) . . . . . . . . . . .6
Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]) . . . . . . . . . . . . . 6
Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]) . . . . . . . . . . . . . . . . . . . 6
Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]) . . . . . . . . . . . . . . . . . . . . 5, 6, 7
McGhee v HRH Constr. LLC, 2008 NY Slip Op 30316[U], *12-13 [Sup Ct, NY County 2008]) 7
Tri-Tec Design, Inc. v Zatek Corp., 123 AD3d 420, 420 [1st Dept 2014]) ............. 5, 6, 7
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I. PRELIMINARY STATEMENT
This motion to amend the First Amended Complaint of Plaintiff Zeynep Tekiner is
necessitated solely because of Defendants’ counsel’s dilatory tactics and bad faith. After
negotiating with Defendants’ prior counsel and current counsel, on or about November 14, 2022,
Defendants’ counsel agreed to consent to Zeynep amending her First Amended Complaint to add
a cause of action against Gonca Terkiner for aiding and abetting breach of fiduciary duty. Yet
they now refuse to sign a stipulation consenting to the amendment of the complaint! Zeynep
requests that the Court grant this motion and grant Zeynep the costs and fees incurred in the
making of this motion.
The marked up proposed second amended complaint is attached to the accompanying
affidavit of Michele Kahn (“Kahn Aff.”) as Exhibit A.
II. FACTS AND BACKGROUND
On March 22, 2022, Zeynep moved for an Order permitting her to intervene as plaintiff.
(Signed order to show cause, moving affidavits, moving memorandum of law, and reply affidavit
at NYSCEF Docs. 223, 217, 221, 222 346 (filed under seal), respectively). Zeynep attached a
proposed complaint as an exhibit to the motion. (NYSCEF Doc. 218). By Decision and Order
dated April 18, 2022, the Court granted Zeynep the right to intervene. (NYSCEF Doc. 354).
Zeynep’s proposed complaint (NYSCEF Doc. 218) mirrored the original complaint of
Plaintiff Yasemin Tekiner that had been filed on January 25, 2021. (NYSCEF Doc. 86). On or
about February 26, 2021, Defendants had moved to dismiss certain of Yasemin’s causes of
action and parts of other causes of action,1 and by Decision and Order dated February 26, 2021
1
Notice of motion, moving affidavit, moving memorandum of law, and reply memorandum of law are at NYSCEF
Docs. 92, 93, 94, 121, respectively.
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(NYSCEF Doc. 140) the Court granted Defendants’ motion in part. After the Court granted
Zeynep the right to intervene, Norton Rose, then counsel for Defendants, asked me to amend
Zeynep’s proposed complaint to reflect the causes of action and portions of causes of action that
the Court had dismissed, and I agreed to do so. True and correct copies of my May 13, May 10,
and July 7, 2022 emails are attached hereto as Exhibit B. On May 13, 2022, Zeynep filed her
First Amended Complaint (NYSCEF Doc. 371).
On August 27, 2021, Plaintiff Yasemin Tekiner had filed a motion to amend her
complaint to add a cause of action against Berrin Tekiner (“Berrin”), Gonca Tekiner (“Gonca”),
and Billur Akipek (“Billur”) for aiding and abetting breach of fiduciary duty. (Notice of motion,
moving affidavit, moving memorandum of law, reply memorandum of law at NYSCEF
Docs.145, 146, 150, and 154, respectively). On June 15, 2022, the Court granted that motion.
(NYSCEF Doc. 513).
After the Court granted Yasemin’s motion to add the aiding and abetting claim, on July
27, 2022, 2 Zeynep’s counsel asked Defendants’ counsel to consent to the amendment of
Zeynep’s First Amended Complaint to add a claim for aiding and abetting breach of fiduciary
duty against Berrin, Gonca, and Billur. See July 27, 2022 letter attached as Exhibit C to Kahn
Aff.).
Thereafter, on August 5, 2022, Defendants moved to dismiss the new cause of action for
aiding and abetting a breach of fiduciary duty (notice of motion, moving affidavit, moving
memorandum of law, and reply memorandum of law at NYSCEF Docs. 660, 661, 662, and 697,
respectively). Bizarrely, on August 10, 2022, Defendants’ counsel demanded a marked draft of
Zeynep’s proposed second amended complaint before they would reply to Zeynep’s counsel’s
2
During end of June and beginning of July, 2022, Zeynep’s counsel was working to take over Zeynep’s phone ESI,
which Defendants’ prior counsel had collected. Druing this same time, Defendants changed counsel.
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request that they consent to the amendment to add the aiding and abetting cause of action. (See
August 10, 2022 Hill letter attached as Exhibit D to Kahn Aff.). That same day Zeynep’s
counsel wrote to Defendants’ counsel and stated that since that had moved to dismiss the aiding
and abetting cause of action from Yasemin’s complaint, it was “wasteful [and] in bad faith” for
them to demand a proposed marked complaint from Zeynep. (Kahn August 10, 2022 letter,
Exhibit E to Kahn Aff). In that letter and again on August 16, 2022 and August 22, 2022,
Zeynep’s counsel advised Defendants’ counsel that once the Court decided Defendants’ motion
to dismiss the new cause of action from Yasemin’s complaint, she would contact Defendants’
counsel regarding Zeynep amending her complaint to add a new cause of action for aiding and
abetting a breach of fiduciary duty. (See Kahn August 16 and August 22, 2022 letters, attached
collectively as Exhibit F to Kahn Aff.).
By Decision and Order dated October 25, 2022, the Court held that Yasemin’s cause of
action for aiding and abetting breach of fiduciary duty would stand against Gonca, but was
dismissed as to Berrin and Billur. (NYSCEF Doc. 842). Thereafter, on November 11, 2022 and
again on November 14, 2022, Zeynep’s counsel sent Defendants’ counsel the marked up
proposed second amended complaint (Exhibit A), and asked Defendants’ counsel to consent to
Zeynep amending her First Amended Complaint to add a cause of action for aiding and abetting
breach of fiduciary duty against Gonca only. (See Kahn November 11 and November 14, 2022
emails, attached collectively as Exhibit G to Kahn Aff).
On November 18, 2022, Defendants’ counsel agreed to the amendment of the complaint
provided that Zeynep’s counsel confirmed that no additional discovery would be needed due to
the amendment of the complaint. (See Mohler November 18, 2022 email, attached as Exhibit H
to Kahn Aff). That confirmation was given on November 22, 2022 in an email in which
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Zeyenp’s counsel confirmed that she did not see any need for Plaintiffs to conduct additional
discovery if the complaint was amended, but that she could not make that determination for
Defendants. (See Kahn November 22, 2022 email, also part of Exhibit H).
On December 13, 2022, Zeynep’s counsel advised Defendants’ counsel that she expected
to send the stipulation consenting to Zeynep adding an aiding and abetting cause of action
against Gonca soon. Counsel also stated that she would send her statement that she would not
need any discovery as a result of the amendment. (See Kahn December 13, 2022 email, Exhibit I
to Kahn Aff). However, Zeynep’s then counsel realized that she had already given that
statement to Defendants’ counsel in her November 22, 2022 email (Exhibit H to Kahn Aff.).
On December 28, 2022, Zeynep’s counsel sent Defendants’ counsel a proposed
stipulation to amend Zeynep’s First Amended Complaint and asked that he send his comments, if
any. An additional copy of Zeynep’s marked up proposed second amended complaint was
attached. (See Kahn December 28, 2022 email and stipulation, attached as Exhibit J to Kahn
Aff.). On January 3, 2023, Defendants’ counsel replied that it would no longer consent to the
amendment because Zeynep’s counsel had not given Defendants’ counsel a representation that
the amendment would not necessitate additional discovery (even though she had given that
representation), and because the note of issue had been filed. (See Mohler January 3, 2023 email,
Exhibit K to Kahn Aff.).
On January 6, 2023, Zeynep’s counsel reminded Defendants’ counsel that she had
already made the representation that Plaintiffs would not need additional discovery in connection
with the amendment of the complaint; she made the representation again (for at least the third
time); she advised Defendants’ counsel that pleadings could be amended at any time and that
leave to amend is liberally granted; and asked again for Defendants’ counsel to sign the
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stipulation or send comments so that the Court would not be burdened with a motion which
should not be necessary. (See Kahn January 6, 2023 email, part of Exhibit K to Kahn Aff).
Defendants’ counsel never replied. Thus, due solely to Defendants’ bad faith, this motion
has become necessary.
III. ARGUMENT
ZEYNEP SHOULD BE GRANTED LEAVE TO AMEND ZEYNEP’S
FIRST AMENDED COMPLAINT TO ADD A CLAIM AGAINST
GONCA FOR AIDING AND ABETTING BREACH OF FIDUCIARY DUTY
A. Leave to Amend is Liberally Granted
It is well-settled that pleadings may be amended at any time, and leave to amend should
be liberally granted. CPLR 3025(b) provides: “A party may amend his or her pleading . . . at any
time by leave of court or by stipulation of all parties. Leave shall be freely given . . .”
Where there is no prejudice or unfair surprise, refusal to allow amendment is an improper
exercise of discretion. (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]).
B. There is No Prejudice or Unfair Surprise
"Leave to amend the pleadings 'shall be freely given' absent prejudice or surprise
resulting directly from the delay (citations omitted)” (Tri-Tec Design, Inc. v Zatek Corp., 123
AD3d 420, 420 [1st Dept 2014]). Especially in the “absence of prejudice or unfair surprise”,
leave to amend should be granted. (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept
2004]).
"Prejudice requires 'some indication that the defendant has been hindered in the
preparation of his case or has been prevented from taking some measure in support of his
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position' " (Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365, 841 NYS2d 277
[2007], quoting Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, 429 NE2d 90, 444
NYS2d 571 [1981]). (Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]);
and see (Tri-Tec Design, Inc. v Zatek Corp., 123 AD3d 420, 420 [1st Dept 2014]).
An amendment to add a new cause of action based on the same transactions already
pleaded in the pleading does not constitute prejudice or surprise. (Beverage Mktg. USA v S.
Beach Bev. Co., 20 AD3d 439, 440 [2d Dept 2005]) (“Moreover, since the proposed amendment
merely seeks to add a new theory of recovery, without alleging new or different transactions, the
defendants would not be surprised or prejudiced by the amendment.”).
Nor is prejudice found “in the mere exposure of the defendant to greater liability”.
(Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]); (Masterwear Corp. v
Bernard, 3 AD3d 305, 306 [1st Dept 2004]). Instead, there must be some indication that the
defendant has been hindered in the preparation of his case or has been prevented from taking
some measure in support of his position.” (Id.)
Here, Zeynep’s proposed new cause of action is based on the same factual allegations
contained in the extant First Amended Complaint. The proposed new cause of action for aiding
and abetting is based upon, among other things, the Defendants’ breaches of their fiduciary
duties, the removal of Yasemin as a trustee of Yasemin’s Trust and as a director, threatening to
remove Zeynep as trustee of her own trust and cutting off her salary if she did not acquiesce in
firing Yasemin, the below market Extell sale, and Defendants’ numerous transfers of corporate
funds to themselves. There is nothing surprising about any of the allegations in the new proposed
new cause of action. All of these facts underlie the existing causes of action in the extant First
Amended Complaint.
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C. The Amendment and the Motion to Amend are Timely
Leave to amend should be freely granted, and requests for leave to amend can be made
at any time. CPLR 3025(b). This includes even allowing amendments to pleadings “before or
after the judgment to conform them to the evidence” under CPLR 3025(c), which are to be
determined under the same principles as motions under CPKR 3025(b); and see Kimso Apts.,
LLC v Gandhi, 24 NY3d 403, 411 [2014].
A motion to amend a pleading that does not prejudice or surprise the other party should
be freely granted even if there has been a delay in making the motion. (Masterwear Corp. v
Bernard, 3 AD3d 305, 306 [1st Dept 2004]). “Mere delay in seeking to amend a pleading does
not warrant denial of the motion, in the absence of prejudice (Cherebin v Empress Ambulance
Serv., Inc., 43 AD3d 364, 365, 841 NYS2d 277 [1st Dept 2007])”; (Tri-Tec Design, Inc. v Zatek
Corp., 123 AD3d 420, 420 [1st Dept 2014]); and see (McGhee v HRH Constr. LLC, 2008 NY
Slip Op 30316[U], *12-13 [Sup Ct, NY County 2008]) (“mere lateness is not a barrier to an
amendment. Lateness must be coupled with significant prejudice . . .” “[M]ere delay does not
warrant a denial of leave to amend, unless the delay is coupled with significant prejudice to the
other side.”)
Here, Zeynep’s counsel did not make the motion for leave to amend sooner in order to
not burden the Court, and because she believed that Defendants’ counsel would sign the
stipulation to amend the complaint once Defendants’ counsel had agreed to consent to the
amendment. To the extent the Court believes that there is any delay – and it is respectfully
submitted that there has not been any delay – the amendment will not cause any prejudice or
surprise to Defendants, and the motion should be granted.
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CONCLUSION
For all the foregoing reasons, and as set forth in the accompanying affirmation of
Michele Kahn, it is respectfully requested that the Court issue an Order: (a) granting Zeynep’s
motion for leave to amend her First Amended Complaint in substantially the form attached as
Exhibit A to add a cause of action against Gonca Tekiner for aiding and abetting breach of
fiduciary duty; and (b) granting Zeynep such other and further relief as the Court deems just and
proper, including without limitation, costs and attorneys’ fees on this motion.
Dated: New York, New York
January 9, 2023
Respectfully submitted,
KAHN & GOLDBERG, LLP
______________________________
By: Michele Kahn, Esq.
Attorneys for Plaintiff Zeynep Tekiner
555 Fifth Avenue, 14th Floor
New York, New York 10017
(212) 687-5066
mk@kahngoldberg.com
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CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17
I hereby certify that the foregoing Memorandum of Law 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
3,043, which is within the word limit of 7,000.
Dated: January 9, 2023
New York, New York
S/ Michele Kahn
______________________________
Michele Kahn
Tekiner/MOL Supp M-Amend to Add Aid and Abet C-A
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Preview
FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 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 Defendants, Motion Sequence No. ___ Plaintiff, -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 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 ZEYNEP TEKINER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION FOR AN ORDER GRANTING LEAVE TO AMEND HER FIRST AMENDED COMPLAINT TO STATE A CAUSE OF ACTION AGAINST GONCA TEKINER FOR AIDING AND ABETTING BREACH OF FIDUCIARY DUTY KAHN & GOLDBERG, LLP Michele Kahn, Esq. Attorneys for Plaintiff Zeynep Tekiner 555 Fifth Avenue, 14th Floor New York, New York 10017 (212) 687-5066 mk@kahngoldberg.com 2 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 TABLE OF CONTENTS I. Preliminary Statement . . . . . . . . . . . ...................................1 II. Facts and Background . . . . . . . . . . . ...................................1 III. Argument . . . . . . . . . . ..............................................5 A. Leave to Amend is Liberally Granted ............................5 B. There is No Prejudice or Unfair Surprise . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. The Amendment and the Motion to Amend are Timely ..............7 IV. Conclusion .......................................................8 i 3 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 TABLE OF AUTHORITIES Beverage Mktg. USA v S. Beach Bev. Co., 20 AD3d 439, 440 [2d Dept 2005]) . . . . . . . . . . .6 Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]) . . . . . . . . . . . . . 6 Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]) . . . . . . . . . . . . . . . . . . . 6 Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]) . . . . . . . . . . . . . . . . . . . . 5, 6, 7 McGhee v HRH Constr. LLC, 2008 NY Slip Op 30316[U], *12-13 [Sup Ct, NY County 2008]) 7 Tri-Tec Design, Inc. v Zatek Corp., 123 AD3d 420, 420 [1st Dept 2014]) ............. 5, 6, 7 ii 4 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 I. PRELIMINARY STATEMENT This motion to amend the First Amended Complaint of Plaintiff Zeynep Tekiner is necessitated solely because of Defendants’ counsel’s dilatory tactics and bad faith. After negotiating with Defendants’ prior counsel and current counsel, on or about November 14, 2022, Defendants’ counsel agreed to consent to Zeynep amending her First Amended Complaint to add a cause of action against Gonca Terkiner for aiding and abetting breach of fiduciary duty. Yet they now refuse to sign a stipulation consenting to the amendment of the complaint! Zeynep requests that the Court grant this motion and grant Zeynep the costs and fees incurred in the making of this motion. The marked up proposed second amended complaint is attached to the accompanying affidavit of Michele Kahn (“Kahn Aff.”) as Exhibit A. II. FACTS AND BACKGROUND On March 22, 2022, Zeynep moved for an Order permitting her to intervene as plaintiff. (Signed order to show cause, moving affidavits, moving memorandum of law, and reply affidavit at NYSCEF Docs. 223, 217, 221, 222 346 (filed under seal), respectively). Zeynep attached a proposed complaint as an exhibit to the motion. (NYSCEF Doc. 218). By Decision and Order dated April 18, 2022, the Court granted Zeynep the right to intervene. (NYSCEF Doc. 354). Zeynep’s proposed complaint (NYSCEF Doc. 218) mirrored the original complaint of Plaintiff Yasemin Tekiner that had been filed on January 25, 2021. (NYSCEF Doc. 86). On or about February 26, 2021, Defendants had moved to dismiss certain of Yasemin’s causes of action and parts of other causes of action,1 and by Decision and Order dated February 26, 2021 1 Notice of motion, moving affidavit, moving memorandum of law, and reply memorandum of law are at NYSCEF Docs. 92, 93, 94, 121, respectively. 1 5 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 (NYSCEF Doc. 140) the Court granted Defendants’ motion in part. After the Court granted Zeynep the right to intervene, Norton Rose, then counsel for Defendants, asked me to amend Zeynep’s proposed complaint to reflect the causes of action and portions of causes of action that the Court had dismissed, and I agreed to do so. True and correct copies of my May 13, May 10, and July 7, 2022 emails are attached hereto as Exhibit B. On May 13, 2022, Zeynep filed her First Amended Complaint (NYSCEF Doc. 371). On August 27, 2021, Plaintiff Yasemin Tekiner had filed a motion to amend her complaint to add a cause of action against Berrin Tekiner (“Berrin”), Gonca Tekiner (“Gonca”), and Billur Akipek (“Billur”) for aiding and abetting breach of fiduciary duty. (Notice of motion, moving affidavit, moving memorandum of law, reply memorandum of law at NYSCEF Docs.145, 146, 150, and 154, respectively). On June 15, 2022, the Court granted that motion. (NYSCEF Doc. 513). After the Court granted Yasemin’s motion to add the aiding and abetting claim, on July 27, 2022, 2 Zeynep’s counsel asked Defendants’ counsel to consent to the amendment of Zeynep’s First Amended Complaint to add a claim for aiding and abetting breach of fiduciary duty against Berrin, Gonca, and Billur. See July 27, 2022 letter attached as Exhibit C to Kahn Aff.). Thereafter, on August 5, 2022, Defendants moved to dismiss the new cause of action for aiding and abetting a breach of fiduciary duty (notice of motion, moving affidavit, moving memorandum of law, and reply memorandum of law at NYSCEF Docs. 660, 661, 662, and 697, respectively). Bizarrely, on August 10, 2022, Defendants’ counsel demanded a marked draft of Zeynep’s proposed second amended complaint before they would reply to Zeynep’s counsel’s 2 During end of June and beginning of July, 2022, Zeynep’s counsel was working to take over Zeynep’s phone ESI, which Defendants’ prior counsel had collected. Druing this same time, Defendants changed counsel. 2 6 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 request that they consent to the amendment to add the aiding and abetting cause of action. (See August 10, 2022 Hill letter attached as Exhibit D to Kahn Aff.). That same day Zeynep’s counsel wrote to Defendants’ counsel and stated that since that had moved to dismiss the aiding and abetting cause of action from Yasemin’s complaint, it was “wasteful [and] in bad faith” for them to demand a proposed marked complaint from Zeynep. (Kahn August 10, 2022 letter, Exhibit E to Kahn Aff). In that letter and again on August 16, 2022 and August 22, 2022, Zeynep’s counsel advised Defendants’ counsel that once the Court decided Defendants’ motion to dismiss the new cause of action from Yasemin’s complaint, she would contact Defendants’ counsel regarding Zeynep amending her complaint to add a new cause of action for aiding and abetting a breach of fiduciary duty. (See Kahn August 16 and August 22, 2022 letters, attached collectively as Exhibit F to Kahn Aff.). By Decision and Order dated October 25, 2022, the Court held that Yasemin’s cause of action for aiding and abetting breach of fiduciary duty would stand against Gonca, but was dismissed as to Berrin and Billur. (NYSCEF Doc. 842). Thereafter, on November 11, 2022 and again on November 14, 2022, Zeynep’s counsel sent Defendants’ counsel the marked up proposed second amended complaint (Exhibit A), and asked Defendants’ counsel to consent to Zeynep amending her First Amended Complaint to add a cause of action for aiding and abetting breach of fiduciary duty against Gonca only. (See Kahn November 11 and November 14, 2022 emails, attached collectively as Exhibit G to Kahn Aff). On November 18, 2022, Defendants’ counsel agreed to the amendment of the complaint provided that Zeynep’s counsel confirmed that no additional discovery would be needed due to the amendment of the complaint. (See Mohler November 18, 2022 email, attached as Exhibit H to Kahn Aff). That confirmation was given on November 22, 2022 in an email in which 3 7 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 Zeyenp’s counsel confirmed that she did not see any need for Plaintiffs to conduct additional discovery if the complaint was amended, but that she could not make that determination for Defendants. (See Kahn November 22, 2022 email, also part of Exhibit H). On December 13, 2022, Zeynep’s counsel advised Defendants’ counsel that she expected to send the stipulation consenting to Zeynep adding an aiding and abetting cause of action against Gonca soon. Counsel also stated that she would send her statement that she would not need any discovery as a result of the amendment. (See Kahn December 13, 2022 email, Exhibit I to Kahn Aff). However, Zeynep’s then counsel realized that she had already given that statement to Defendants’ counsel in her November 22, 2022 email (Exhibit H to Kahn Aff.). On December 28, 2022, Zeynep’s counsel sent Defendants’ counsel a proposed stipulation to amend Zeynep’s First Amended Complaint and asked that he send his comments, if any. An additional copy of Zeynep’s marked up proposed second amended complaint was attached. (See Kahn December 28, 2022 email and stipulation, attached as Exhibit J to Kahn Aff.). On January 3, 2023, Defendants’ counsel replied that it would no longer consent to the amendment because Zeynep’s counsel had not given Defendants’ counsel a representation that the amendment would not necessitate additional discovery (even though she had given that representation), and because the note of issue had been filed. (See Mohler January 3, 2023 email, Exhibit K to Kahn Aff.). On January 6, 2023, Zeynep’s counsel reminded Defendants’ counsel that she had already made the representation that Plaintiffs would not need additional discovery in connection with the amendment of the complaint; she made the representation again (for at least the third time); she advised Defendants’ counsel that pleadings could be amended at any time and that leave to amend is liberally granted; and asked again for Defendants’ counsel to sign the 4 8 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 stipulation or send comments so that the Court would not be burdened with a motion which should not be necessary. (See Kahn January 6, 2023 email, part of Exhibit K to Kahn Aff). Defendants’ counsel never replied. Thus, due solely to Defendants’ bad faith, this motion has become necessary. III. ARGUMENT ZEYNEP SHOULD BE GRANTED LEAVE TO AMEND ZEYNEP’S FIRST AMENDED COMPLAINT TO ADD A CLAIM AGAINST GONCA FOR AIDING AND ABETTING BREACH OF FIDUCIARY DUTY A. Leave to Amend is Liberally Granted It is well-settled that pleadings may be amended at any time, and leave to amend should be liberally granted. CPLR 3025(b) provides: “A party may amend his or her pleading . . . at any time by leave of court or by stipulation of all parties. Leave shall be freely given . . .” Where there is no prejudice or unfair surprise, refusal to allow amendment is an improper exercise of discretion. (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]). B. There is No Prejudice or Unfair Surprise "Leave to amend the pleadings 'shall be freely given' absent prejudice or surprise resulting directly from the delay (citations omitted)” (Tri-Tec Design, Inc. v Zatek Corp., 123 AD3d 420, 420 [1st Dept 2014]). Especially in the “absence of prejudice or unfair surprise”, leave to amend should be granted. (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]). "Prejudice requires 'some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his 5 9 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 position' " (Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365, 841 NYS2d 277 [2007], quoting Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, 429 NE2d 90, 444 NYS2d 571 [1981]). (Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]); and see (Tri-Tec Design, Inc. v Zatek Corp., 123 AD3d 420, 420 [1st Dept 2014]). An amendment to add a new cause of action based on the same transactions already pleaded in the pleading does not constitute prejudice or surprise. (Beverage Mktg. USA v S. Beach Bev. Co., 20 AD3d 439, 440 [2d Dept 2005]) (“Moreover, since the proposed amendment merely seeks to add a new theory of recovery, without alleging new or different transactions, the defendants would not be surprised or prejudiced by the amendment.”). Nor is prejudice found “in the mere exposure of the defendant to greater liability”. (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]); (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]). Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position.” (Id.) Here, Zeynep’s proposed new cause of action is based on the same factual allegations contained in the extant First Amended Complaint. The proposed new cause of action for aiding and abetting is based upon, among other things, the Defendants’ breaches of their fiduciary duties, the removal of Yasemin as a trustee of Yasemin’s Trust and as a director, threatening to remove Zeynep as trustee of her own trust and cutting off her salary if she did not acquiesce in firing Yasemin, the below market Extell sale, and Defendants’ numerous transfers of corporate funds to themselves. There is nothing surprising about any of the allegations in the new proposed new cause of action. All of these facts underlie the existing causes of action in the extant First Amended Complaint. 6 10 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 C. The Amendment and the Motion to Amend are Timely Leave to amend should be freely granted, and requests for leave to amend can be made at any time. CPLR 3025(b). This includes even allowing amendments to pleadings “before or after the judgment to conform them to the evidence” under CPLR 3025(c), which are to be determined under the same principles as motions under CPKR 3025(b); and see Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014]. A motion to amend a pleading that does not prejudice or surprise the other party should be freely granted even if there has been a delay in making the motion. (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [1st Dept 2004]). “Mere delay in seeking to amend a pleading does not warrant denial of the motion, in the absence of prejudice (Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365, 841 NYS2d 277 [1st Dept 2007])”; (Tri-Tec Design, Inc. v Zatek Corp., 123 AD3d 420, 420 [1st Dept 2014]); and see (McGhee v HRH Constr. LLC, 2008 NY Slip Op 30316[U], *12-13 [Sup Ct, NY County 2008]) (“mere lateness is not a barrier to an amendment. Lateness must be coupled with significant prejudice . . .” “[M]ere delay does not warrant a denial of leave to amend, unless the delay is coupled with significant prejudice to the other side.”) Here, Zeynep’s counsel did not make the motion for leave to amend sooner in order to not burden the Court, and because she believed that Defendants’ counsel would sign the stipulation to amend the complaint once Defendants’ counsel had agreed to consent to the amendment. To the extent the Court believes that there is any delay – and it is respectfully submitted that there has not been any delay – the amendment will not cause any prejudice or surprise to Defendants, and the motion should be granted. 7 11 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 CONCLUSION For all the foregoing reasons, and as set forth in the accompanying affirmation of Michele Kahn, it is respectfully requested that the Court issue an Order: (a) granting Zeynep’s motion for leave to amend her First Amended Complaint in substantially the form attached as Exhibit A to add a cause of action against Gonca Tekiner for aiding and abetting breach of fiduciary duty; and (b) granting Zeynep such other and further relief as the Court deems just and proper, including without limitation, costs and attorneys’ fees on this motion. Dated: New York, New York January 9, 2023 Respectfully submitted, KAHN & GOLDBERG, LLP ______________________________ By: Michele Kahn, Esq. Attorneys for Plaintiff Zeynep Tekiner 555 Fifth Avenue, 14th Floor New York, New York 10017 (212) 687-5066 mk@kahngoldberg.com 8 12 of 13 FILED: NEW YORK COUNTY CLERK 01/09/2023 02:46 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1020 RECEIVED NYSCEF: 01/09/2023 CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17 I hereby certify that the foregoing Memorandum of Law 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 3,043, which is within the word limit of 7,000. Dated: January 9, 2023 New York, New York S/ Michele Kahn ______________________________ Michele Kahn Tekiner/MOL Supp M-Amend to Add Aid and Abet C-A 9 13 of 13