Motion-Secondary: Yasemin Tekiner in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants v. Bremen House Inc., German News Company, Inc., Berrin Tekiner, Gonca Tekiner, Billur Akipek in her capacity as a Trustee of the Yasemin Tekiner 2011 Descendants Trust, Zeynep Tekiner (Intervenor Plaintiff)

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

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
Index 657193/2020
in her individual capacity, as a beneficiary and a
Trustee of The Yasemin Tekiner 2011 Commercial Division Part 3
Descendants Trust and derivatively as a holder of
equitable interests in a shareholder or a member Hon. Joel M. Cohen
of the Company Defendants,
Mot. Seq. 48
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 Yasemin
Tekiner 2011 Descendants Trust.

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF ZEYNEP TEKINER’S
MOTION TO AMEND THE VERIFIED FIRST AMENDED COMPLAINT

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PRYOR CASHMAN LLP
Todd E. Soloway
Bryan T. Mohler
Rachel E. Shaw
7 Times Square
New York, NY 10036
(212) 421-4100
Attorneys for Defendants

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

PROCEDURAL HISTORY AND BACKGROUND......................................................................2

I. Zeynep Intervenes in this Action ............................................................................................2

II. Yasemin’s Second Amended Complaint ................................................................................2

III. Zeynep Proposes Amending Her Complaint, and Then Fails To Do So ................................3

IV. Zeynep’s Proposed Second Amended Complaint...................................................................4

ARGUMENT ...................................................................................................................................4

I. LEGAL STANDARD .............................................................................................................4

II. ZEYNEP ALONE IS TO BLAME FOR HER FAILURE TO
TIMELY SEEK AMENDMENT OF THE AMENDED COMPLAINT ...............................6

III. ZEYNEP ALSO CANNOT STATE A CLAIM FOR AIDING AND ABETTING A
BREACH OF FIDUCIARY DUTY AGAINST GONCA......................................................7

CONCLUSION ..............................................................................................................................12

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TABLE OF AUTHORITIES

CASES PAGE(s)

Alliance Network, LLC v. Sidley Austin LLP,
43 Misc. 3d 848, 987 N.Y.S 2d 794 (N.Y. Sup. 2014) ..............................................................1

Bailey v. Village of Saranac Lake, Inc.,
100 A.D.3d 1089 (3d Dep’t 2012) .............................................................................................5

Bert G. Gross & Co., Inc. v. Damor Realty Corp.,
60 A.D.2d 541 (1st Dep’t 1977) ................................................................................................6

In re Dole Food Co., Inc. S’holder Litig.,
No.8703-VCL, No.9079-VCL, 2015 WL 5052214 (Del. Ch. Aug. 27, 2015) ..........................8

Garfinkel v. Garfinkel,
8 A.D.2d 777 (1st Dep’t 1959) ..................................................................................................4

Glenn Partition, Inc. v. Trustees of Columbia Univ. in City of New York,
169 A.D.2d 488 (1st Dep’t 1991) ..............................................................................................7

Haddad v. New York City Transit Auth.,
5 A.D.3d 255 (1st Dep’t 2004) ..................................................................................................6

Kihl v. Pfeffer,
94 N.Y.2d 118 (1999) ................................................................................................................5

Law v. Law,
753 A.2d 443 (Del. 2000) ........................................................................................................11

Lockton v. Rogers,
2021-0058-SG, 2022 Del. Ch. LEXIS 47 (Del. Ch. Mar. 1, 2022) ...........................................7

Malpiede v. Townson,
780 A.2d 1075 (Del. 2001) .....................................................................................................11

Miranda v. Riverdale Manor Home for Adults,
142 A.D.3d 813 (1st Dep’t 2016) ..............................................................................................5

Mosaic Caribe, Ltd. v. AllSettled Group, Inc.,
117 A.D.3d 421 (1st Dep’t 2014) ..............................................................................................7

Neurvana Med., LLC v. Balt USA, LLC,
CV 2019-0034-KSJM, 2020 WL 949917 (Del. Ch. Feb. 27, 2020) ..........................................9

NuVasive, Inc. v. Miles,
CV 2017-0720-SG, 2020 WL 5106554 (Del. Ch. Aug. 31, 2020) ......................................8, 10

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In re NYMEX S'holder Litig.,
CIV.A. 3621-VCN, 2009 WL 3206051 (Del. Ch. Sept. 30, 2009)............................................9

Olam Corp. v. Thayer,
652764/2018, 2021 WL 408232 (Sup. Ct. N.Y. Cnty. Feb. 5, 2021) ........................................7

In re Oracle Corp. Derivative Litig.,
CV 2017-0337-SG, 2020 WL 3410745 (Del. Ch. June 22, 2020).............................................8

Orros v. Yick Ming Yip Realty, Inc.,
258 A.D.2d 387 (1st Dep’t 1999) ..............................................................................................5

Prince v. O'Brien,
256 A.D.2d 208 (1st Dep’t 1998) ..............................................................................................5

RBC Cap. Markets, LLC v. Jervis,
129 A.3d 816 (Del. 2015) ........................................................................................................11

Rontee & Co. v. Janoff,
224 A.D.2d 227 (1st Dep’t 1996) ..............................................................................................5

In re Santa Fe Pac. Corp. S'holder Litig.,
669 A.2d 59 (Del. 1995) ............................................................................................................9

Wolf v. Wolf,
50 A.D.2d 740 (1st Dep’t 1975) ................................................................................................4

STATUTES

CPLR 3025.......................................................................................................................................7

CPLR 3211(a) ..................................................................................................................................1

iii

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Defendants Bremen House Inc. (“Bremen House”), German News Company, Inc.

(“German News”), (collectively, the “Company Defendants”), Berrin Tekiner (“Berrin”), Gonca

Chelsea (“Gonca”), and Billur Akipek (“Billur”) (the “Individual Defendants,” and, together with

the Company Defendants, the “Defendants”) respectfully submit this Memorandum of Law

pursuant to CPLR 3211(a)(1) and 3211(a)(7) in opposition to Plaintiff Zeynep Tekiner’s (“Plaintiff”

or “Zeynep”) Motion to Amend the Verified First Amended Complaint (the “Motion”).

PRELIMINARY STATEMENT

Zeynep seeks leave, post filing of note of issue, to amend her Amended Verified Complaint

in Intervention (the “Amended Complaint”) to add a new theory of recovery against Gonca.

Zeynep offers no explanation for why such relief could not have been timely sought in the nine-

plus months since she intervened in this action, much less what “material facts” were not known

to her prior to the close of discovery -- as the law requires. To the contrary, Zeynep concedes that

her proposed new cause of action is “based on the same factual allegations” set forth in the

Amended Complaint filed in May 2022. Instead, Zeynep incredibly tries to point the finger at

Defendants, claiming that Defendants somehow prevented her from timely seeking to amend. That

argument is neither logical nor credible, as described.

Because Zeynep fails to meet the standard necessary to amend her complaint post-note of

issue, and because the proposed aiding and abetting claim fails to sufficiently allege that Gonca

materially supported Berrin and Billur’s alleged fiduciary breaches, the Motion should be denied

in its entirety.

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PROCEDURAL HISTORY AND BACKGROUND

I. Zeynep Intervenes in this Action

In March 2022, Zeynep moved by order to show cause to intervene into this action. (Dkt.

223.) By Decision and Order dated April 18, 2022, Zeynep’s motion was granted. (Dkt. 354.)

On April 19, 2022, Zeynep filed a Verified Complaint in Intervention. (Dkt. 358.) Three

weeks later, Zeynep filed a First Amended Complaint in Intervention (the “Amended Complaint”).

(Dkt. 371.) On May 17, 2022, Defendants filed their Verified Answer, Affirmative Defense and

Counterclaims to Zeynep’s Verified Intervention Complaint. (Dkt. 372.)

The Amended Complaint asserts six causes of action, pled against various combinations

of: Berrin, Gonca Chelsea, Billur, and entity defendants Bremen House and German News. The

factual allegations in the Amended Complaint are identical to the factual allegations in Yasemin’s

First Amended Complaint. (See Dkt. 371, 86, respectively.)

On December 28, 2022, following the completion of fact discovery, Plaintiffs and

Defendants each filed Notes of Issue. (Dkt. 998, 997, respectively.)

Now, following the filing of Plaintiffs’ own Note of Issue, Zeynep seeks leave to Amend

her Amended Complaint (Dkt. 1018.) (“Proposed SAC,” Dkt. 1021).

II. Yasemin’s Second Amended Complaint

On June 22, 2022, Yasemin filed her Verified Second Amended Complaint (Dkt. 548)

adding the Twelfth Cause of Action (“Count Twelve”) for aiding and abetting a breach of fiduciary

duty, alleged against each of the Individual Defendants. On August 5, 2022, Defendants moved

to dismiss Count Twelve (“Motion Sequence 33”). (Dkt. 660-665.) By Decision and Order dated

October 26, 2022, the Court resolved Motion Sequence 33 by dismissing Count Twelve as against

Berrin and Billur, but sustaining it as against Gonca. (Dkt. 841.)

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III. Zeynep Proposes Amending Her Complaint, and Then Fails To Do So

Following Defendants’ motion to dismiss Count Twelve of Yasemin’s Second Amended

Complaint, Zeynep proposed amending the Amended Complaint to “add[] the same cause of

action.” (Mohler Afm., ¶3, Ex. 1.) 1 However, Zeynep indicated she would “be in touch” after the

Court issued its decision the motion. (Id., ¶4, Ex. 2.) By letter dated August 22, 2022, Zeynep

confirmed she would “revisit the issue once the Court decides [Defendants’] motion to dismiss”

Count Twelve. (Id., ¶5, Ex. 3.)

Following the Court’s October 26 Order, Zeynep then waited three weeks to send the

Proposed SAC, with a request that Defendants provide their consent to the filing of same. (Id. ¶6,

Ex. 4.) Defendants agreed, conditioned upon the parties entering into a stipulation whereby

Zeynep would confirm that the Proposed SAC would not include any new factual allegations that

would necessitate additional discovery. (Id. ¶7, Ex. 5.) Ten days later, on November 28, 2022,

Zeynep confirmed. Id. ¶8.) Zeynep then did nothing for thirty days. (Id. ¶9.) No stipulation was

sent. (Id.) It was not until December 28, 2022, the day after the deadline for the completion of

fact discovery and the day the parties filed their respective notes of issue, that Zeynep sent the

stipulation. (Id. ¶10, Ex. 6.) But the stipulation Zeynep sent did not include the agreed upon

representation that Zeynep would not seek additional discovery in connection with the proposed

amendment. (Id. ¶11, Ex. 7.) As such, by email dated January 3, 2023, counsel for Defendants

indicated they could not consent to a post-note of issue amendment. (Id. ¶12, Ex. 6.)

1
References to “Mohler Aff.” are to the Affirmation of Bryan T. Mohler in Opposition to Zeynep’s Motion for Leave
to Amend.

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IV. Zeynep’s Proposed Second Amended Complaint

The factual allegations in the Proposed SAC are identical to the factual allegations in the

Amended Complaint. (See Dkt. 1021, 371, respectively.) The only substantive change is the

addition of Zeynep’s Eighth Cause of Action (“Count Eight”) for aiding and abetting a breach of

fiduciary duty, alleged against Gonca, who holds no role in connection with either the Yasemin

Tekiner 2011 Descendants Trust or the Zeynep Tekiner Ozaltin 2011 Descendants Trust (the

“Trust Agreement”). (Dkt. No. 669.)

Count Eight principally alleges that: (i) Berrin owed Zeynep a fiduciary duty as “sole

member of the Zeynep Trust Protector Committee,” (Dkt. 1021, ¶150); (ii) Billur owed Zeynep a

fiduciary duty as “a Trustee [member of the Trust Committee] of the Zeynep Trust,” id. ¶151; and

(iii) “Gonca aided and abetted Berrin and [Billur’s] breaches of fiduciary duty.” Id. ¶152.

“In 2011, Berrin transferred the [Company’s] property interests…in equal parts to three

irrevocable trusts formed under Delaware law….” Id. ¶26. Under the Trust Agreement, the

Zeynep Trust is located in Delaware, and Delaware law governs the Trust Agreement:

THIRTIETH: Governing Law
This instrument and each trust created by this instrument shall be construed and
governed in all respects by and in accordance with the law of the State of Delaware
and each trust created under this instrument hall have its situs and be administered
in the State of Delaware. Id. §30.

ARGUMENT

I. LEGAL STANDARD

It is settled that where “one who seeks the favor of the court has willfully flouted its orders,

courts will be loath to exercise their discretion to grant such an applicant affirmative relief.” Wolf

v. Wolf, 50 A.D.2d 740, 740 (1st Dep’t 1975) (citation and quotation omitted); see also Garfinkel

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v. Garfinkel, 8 A.D.2d 777, 777 (1st Dep’t 1959) (staying party from “taking any further steps” in

the prosecution of his case until he complied with a prior order).

Likewise, as the Court of Appeals has admonished, “[i]f the credibility of court orders and

the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with

impunity.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123 (1999); see also Rontee & Co. v. Janoff, 224

A.D.2d 227, 227-228 (1st Dep’t 1996) (finding that the trial court properly struck the defendant’s

answer owing to its failure to post an undertaking in accordance with a prior order).

These principals are applicable specifically where a party seeks to amend its complaint

after a note of issue has been filed. “While leave to amend a complaint… ordinarily should be

freely granted, lateness in making a motion to amend, coupled with the absence of a satisfactory

excuse for the delay and prejudice to the opposing party, justifies denial of such a motion.” Bailey

v. Village of Saranac Lake, Inc., 100 A.D.3d 1089, 1090 (3d Dep’t 2012). The First Department

has regularly held that such an amendment is improper where the facts underlying the new claim

were known to the moving party well before the note of issue was filed, and the party provided no

excuse for its delay. See Miranda v. Riverdale Manor Home for Adults, 142 A.D.3d 813 (1st Dep’t

2016) (leave to amend complaint after a note of issue was filed was properly denied where

“[p]laintiff failed to provide a reasonable excuse for the delay or cite material facts that were not

known prior to the close of discovery.” Id. at 814.) (citation omitted); Orros v. Yick Ming Yip

Realty, Inc., 258 A.D.2d 387 (1st Dep’t 1999) (leave to amend complaint after a note of issue was

filed was properly denied where “plaintiff had been on notice for several months prior to the filing

of his note of issue of the facts pertinent to the proposed amendment, [and] he offered no

explanation for his delay in moving to amend.” Id. at 388.) (citation omitted); Prince v. O'Brien,

256 A.D.2d 208 (1st Dep’t 1998) (granting leave to amend complaint was reversed where plaintiff

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did not explain why the additional claim could not have been brought at the outset of the litigation);

see also Haddad v. New York City Transit Auth., 5 A.D.3d 255 (1st Dep’t 2004) (leave to amend

a bill of particulars after a note of issue was filed was properly denied solely because plaintiffs

provided no excuse for their delay; moreover, “there could be no reasonable excuse since plaintiffs

had evidence of the newly asserted injury as early as a year prior to the proposed amendment.” Id.

at 256.).

Since Zeynep does not and cannot provide any justification for her delay in seeking leave

to amend the Amended Complaint prior to the filing of the Notes of Issue, the Motion should be

denied.

II. ZEYNEP ALONE IS TO BLAME FOR HER FAILURE TO
TIMELY SEEK AMENDMENT OF THE AMENDED COMPLAINT

Zeynep seeks leave to amend the Amended Complaint, adding an entirely new theory of

recovery, after Plaintiffs filed their Note of Issue. But Zeynep offers no explanation for why such

amendment could not have been timely sought in the nine months since Zeynep intervened into

this action. In fact, Zeynep outright admits Count Eight “is based on the same factual allegations

contained in the extant First Amended Complaint.” (Dkt. 1020 at 6.) As the court-ordered deadline

for the filing of the Note of Issue approached, Zeynep chose to disregard the Court’s scheduling

order—to which she had consented—in order to continue pursuing Plaintiffs’ preferred strategy

for this litigation. Plaintiffs’ indifference to the Court’s schedule should not be countenanced, and

the Court should deny her request for leave to amend the Amended Complaint that, with diligence,

could have been sought long ago. Bert G. Gross & Co., Inc. v. Damor Realty Corp., 60 A.D.2d

541 (1st Dep’t 1977).

Zeynep’s argument that Defendants’ previously consented to the amendment of the

Amended Complaint rings hollow. (Dkt. 1020 at 3.) What Zeynep conveniently omits from such

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argument is that following Defendants’ consent on November 18, 2022 – six weeks prior to the

deadline for the filing of the Note of Issue – Zeynep then did nothing. (Mohler Aff. ¶ 10.) It was

not until December 28, 2022 – the day both parties filed their Notes of Issue – that Zeynep

forwarded Defendants the proposed stipulation concerning the amendment – without the agreed

upon representation concerning discovery. (Id. ¶11.) Zeynep offers no justification or excuse

whatsoever for this delay. None exists.

Because Zeynep wholly disregarded the Court’s scheduling order, the Motion should be

denied. Prince, 256 A.D.2d 208.

III. ZEYNEP ALSO CANNOT STATE A CLAIM FOR AIDING AND ABETTING
A BREACH OF FIDUCIARY DUTY AGAINST GONCA

Notwithstanding Zeynep’s dilatory conduct, Count Eight fails as a matter of law. Where

“proposed amendments are totally devoid of merit and legally insufficient, leave to amend should

be denied.” Mosaic Caribe, Ltd. v. AllSettled Group, Inc., 117 A.D.3d 421, 422 (1st Dep’t 2014)

(citations omitted). A proposed amendment is legally insufficient where it cannot survive a motion

to dismiss. Glenn Partition, Inc. v. Trustees of Columbia Univ. in City of New York, 169 A.D.2d

488 (1st Dep’t 1991); Olam Corp. v. Thayer, 652764/2018, 2021 WL 408232, at *1 (Sup. Ct. N.Y.

Cnty. Feb. 5, 2021) (“A proposed amended complaint that would be subject to dismissal as a matter

of law is, by definition, ‘palpably insufficient or clearly devoid of merit’ and thus should not be

permitted under CPLR 3025.”). Zeynep’s Motion should be denied because Count Eight fails as

a matter of law.

Under Delaware law, a cause of action for aiding and abetting a breach of fiduciary duty

requires: “(1) the existence of a fiduciary relationship, (2) a breach of the fiduciary’s duty and (3)

knowing participation in that breach by the non-fiduciary.” Lockton v. Rogers, 2021-0058-SG,

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2022 Del. Ch. LEXIS 47, at *41 (Del. Ch. Mar. 1, 2022). Because the Proposed SAC fails to

sufficiently allege these elements against Gonca, the Motion should be denied.

Here, Count Eight fails for the simple reason that Zeynep has not alleged, and cannot

possibly allege, that Gonca substantially assisted and knowingly participated in any of Billur or

Berrin’s alleged fiduciary breaches of their duties to Zeynep.

Under Delaware law, “[b]ecause the involvement of secondary actors in tortious conduct

can take a variety of forms that can differ vastly in their magnitude, effect, and consequential

culpability, the element of knowing participation requires that the secondary actor have provided

substantial assistance to the primary violator.” In re Oracle Corp. Derivative Litig., CV 2017-

0337-SG, 2020 WL 3410745, at *11 (Del. Ch. June 22, 2020) (quoting In re Dole Food Co., Inc.

S’holder Litig., No.8703-VCL, No.9079-VCL, 2015 WL 5052214, at *41 (Del. Ch. Aug. 27,

2015)). To sustain a claim for aiding and abetting a fiduciary breach under Delaware law, a party

must sufficiently allege that the defendant “materially supported or encouraged” the fiduciary

breach. NuVasive, Inc. v. Miles, CV 2017-0720-SG, 2020 WL 5106554, at *14 (Del. Ch. Aug.

31, 2020). The Proposed SAC alleges no such underlying facts, as none exist.

First, Count Eight is entirely devoid of any allegations that Gonca “provided substantial

assistance to the primary violator” or “materially supported or encouraged” Berrin and Billur’s

alleged breaches of their fiduciary duties. To the contrary, Zeynep baldly concludes that Gonca

“assisted in the planning” of Berrin and Billur’s breaches and “shared the same attorneys so as to

ensure these breaches were implemented.” (Dkt. 1021 at ¶152). Zeynep does not identify any act

undertaken by Gonca that she provided assistance to either Berrin or Billur or that she “encouraged”

either one of them to commit the breaches alleged. Similarly, Zeynep’s allegation that Gonca

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“coordinated with the relevant decisionmaker(s) to effect these breaches” is insufficient to state a

claim for aiding and abetting. Id. ¶152.

Delaware courts regularly reject as inadequate such conclusory statements where they are

unsupported by factual allegations. In re Santa Fe Pac. Corp. S'holder Litig., 669 A.2d 59 (Del.

1995) (dismissal of a claim for aiding and abetting breach of fiduciary duty was affirmed where

the complaint alleged no specific facts, only that defendant “knowingly and substantially

participated and assisted in the Individual Defendants’ breaches of fiduciary duty.” Id. at 72); In

re NYMEX S'holder Litig., CIV.A. 3621-VCN, 2009 WL 3206051 (Del. Ch. Sept. 30, 2009) (a

complaint which alleged that defendant “actively and knowingly encouraged and participated in

said breaches,” was insufficient to sustain a claim for aiding and abetting breach of fiduciary duty);

Neurvana Med., LLC v. Balt USA, LLC, CV 2019-0034-KSJM, 2020 WL 949917 (Del. Ch. Feb.

27, 2020) (dismissing a claim of aiding and abetting a breach of fiduciary duty, the court observed:

“Delaware courts construe this [claim] narrowly and require a plaintiff to assert specific facts,

not conclusory allegations, as to each element.” Id. at *11(citations omitted).).

Second, Zeynep fails to plead that Gonca knowingly participated in a breach of a fiduciary

duty owed to Zeynep. Indeed, Zeynep alleges that Berrin and Billur breached their respective

fiduciary duties to Zeynep by removing Yasemin from her trust (Dkt. 1021 at ¶150(a); 151(a)), by

removing Yasemin from her roles at the Entity Defendants and otherwise “retaliating” against

Yasemin (id. at ¶150(b)-(d); 151(b)-(d)), and by declining to give Yasemin distributions from her

trust (id. at ¶150(e); 151(f)). Zeynep offers no explanation for how any of these alleged acts

constitute a breach of Berrin’s or Billur’s fiduciary duties to Zeynep. Nor does Count Eight plead

any facts sufficient to show that Gonca knowingly participated in any such breach.

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Betraying Count Eight’s utter lack of merit, Zeynep alleges “[t]he removal of Yasemin as

Trustee of the Yasemin Trust was detrimental to Zeynep because…Yasemin operated as at least

some kind of check on the Individual Defendants.” Id. at ¶153(c). But Zeynep does not identify

how removing Yasemin from her role as director constitutes a breach of a duty owed to Zeynep.

Nor does Yasemin identify the nature of any purported “encouragement” provided by Gonca. See

NuVasive, Inc., 2020 WL 5106554, at *14. Zeynep also makes no serious effort to sufficiently

allege that Gonca “participated in . . . decisions made regarding [the Trust Protector Committee].”

Dkt. 1021 at ¶150. The Trust Committee has “sole and absolute discretion” over distributions

(Dkt. 669, § 2(B)), and the Proposed SAC does not allege when or how executives of the Company

Defendants such as Gonca are involved in administration of the Trust Agreement.

While Zeynep alleges that Billur abused her discretion as member of Zeynep’s Trust

Committee, there is no (and could be no) allegation that Gonca had any role in Billur’s actions

taken in connection with Zeynep’s Trust Agreement. See Dkt. 1021 at ¶5; 38. In fact, Zeynep

alleges that Billur is “beholden” to Berrin – not Gonca. See, e.g., id. at ¶96. Zeynep also alleges

that Billur executed Berrin’s instructions – an allegation that does not suggest any role for Gonca.

Id. ¶153. Zeynep further alleges that Billur is “under Berrin’s control” – not Gonca’s. Id. at ¶95.

Zeynep’s allegations concerning Berrin’s role as a fiduciary also exclude any participation by

Gonca, as Zeynep alleges Berrin “secretly” signed the document removing Yasemin from her trust.

Id.

Zeynep’s allegation that Berrin and Billur breached their duties in failing to provide her

information is contradicted by other allegations in the Proposed SAC. As a director of Bremen

House, Zeynep has the right to access books and records of the Company yet admits in her

complaint that she “has not made a formal written demand” for such records. See id. at ¶93.

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Zeynep’s allegation that Berrin “explicitly and implicitly” threatened to remove Zeynep as a

member of her Trust Committee if Zeynep did not consent to the firing of Yasemin also fails to

adequately allege a breach, because Zeynep has not alleged any damages based on this threat.

RBC Cap. Markets, LLC v. Jervis, 129 A.3d 816, 861 (Del. 2015) (citing Malpiede v. Townson,

780 A.2d 1075 (Del. 2001) (describing the elements of aiding and abetting breaches

of fiduciary duty as including “damages proximately caused by the breach”).

Third, Zeynep also fails to acknowledge that she participated in Yasemin’s removal and

“firing,” by directing the Corporate Trustee to consent to the directive. See Mohler Afm., Ex. 8.2

Zeynep also directed the Corporate Trustee to authorize Bremen House’s sale of certain properties

to Extell, which she now conveniently claims amounts to breaches of Berrin and Billur’s fiduciary

duties. See Dkt. 1021 at ¶150(g); 151(j); Mohler Afm., Ex. 9. It is black-letter law that a fiduciary

is bound to act with the care they would apply to managing their own affairs in the same

circumstances. Law v. Law, 753 A.2d 443, 447 (Del. 2000)(citations omitted)(“A non-

professional trustee’s duty to the beneficiaries in administering a trust is to exercise the skill and

care that a man of ordinary prudence would exercise in dealing with his own property in light of

the situation existing at the time.”) Here, applying the care she applies in her own affairs, Zeynep

participated in the very act she now claims was a breach.

Last, Zeynep’s allegations concerning “use of money from the Company Defendants to

pay for properties” is spurious, at best. See Dkt. 1021 at ¶150 (h), (i); 151(k), (l) (regarding alleged

“transfer[s]” and “use” of money belonging to the Entity Defendants for personal purposes). First,

Zeynep herself, lives in Company-owned property. Second, as a director of Bremen House,

2
“On a motion to dismiss, the court may consider documents referenced in a complaint, even if the pleading fails to
attach them.” Alliance Network, LLC v. Sidley Austin LLP, 43 Misc. 3d 848, 852, 987 N.Y.S 2d 794, n.1 (N.Y. Sup.
2014) (citation omitted).

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Zeynep herself is required to exercise her own duties as a fiduciary in doing so. Zeynep alleges

for the first time in Count Eight that Gonca “advocated for Yasemin and Zeynep to be removed

from their Trust Committees. Dkt. 1021, Proposed SAC ¶153(b). Zeynep alleges that, in 2017,

“Gonca believed that Yasemin’s role in the Yasemin Trust and the business, and Zeynep’s role in

the Zeynep Trust and the business, posed a threat” to Gonca. Id. However, Zeynep did not have

any “role . . . in the business” in 2017, despite the allegation that she is an “officer and director

of [Bremen House, Inc.].” Id. ¶5. To be clear, Zeynep was first appointed to that position in 2019,

two years after she was removed from her Trust Committee. See Mohler Afm., Ex. 10.

These threadbare, conclusory allegations cannot support Zeynep’s bid to amend her

complaint.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Motion be denied in its

entirety.

Dated: New York, New York
January 30, 2023

PRYOR CASHMAN LLP

By: __________________________
Todd E. Soloway
Bryan T. Mohler
Rachel E. Shaw
7 Times Square
New York, NY 10036
(212) 421-4100
Attorneys for Defendants

17 of 18
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Certification Required by Rule 17 of the
Rules of the Commercial Division of the Supreme Court

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

of the caption, table of contents, table of authorities, and signature block contains 3,569 words as

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

/s/ Meghan E. Hill
Meghan E. Hill

Case Info

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Case No.

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Document Filed Date

January 31, 2023

Case Filing Date

December 21, 2020

County

Parties

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

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