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FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COMMERCIAL DIVISION: NEW YORK COUNTY
-------------------------------------------------------------- x
YASEMIN TEKINER, in her individual capacity, as : Index No.: 657193/2020
a beneficiary and a Trustee of The Yasemin Tekiner :
2011 Descendants Trust and derivatively as a holder : Commercial Division Part 3
of equitable interests in a shareholder or a member :
of the Company Defendants, : Hon. Joel M. Cohen, J.S.C.
Plaintiff, :
: Motion Seq. No. 46
- 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. :
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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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REPLY MEMORANDUM OF LAW OF PLAINTIFFS YASEMIN TEKINER
AND ZEYNEP TEKINER IN FURTHER SUPPORT OF THEIR
MOTION TO VACATE DEFENDANTS’ AND PLAINTIFFS’ NOTES OF ISSUE
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TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
ARGUMENT .................................................................................................................................. 3
I. Legal Standard .................................................................................................................... 3
II. Plaintiffs Have Not Waived Their Right to Discovery ....................................................... 4
III. Defendants Admit that Discovery Is Incomplete ............................................................. 5
IV. Plaintiffs’ Note of Issue is Both Proper and a Nullity...................................................... 6
CONCLUSION ............................................................................................................................... 8
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TABLE OF AUTHORITIES
Cases
Barlow v. Skroupa,
2022 N.Y. Misc. LEXIS 8421 (Sup. Ct. N.Y. Co. 2022) ........................................................... 5
Dragutescu v. N.Y.C. Transit Auth.,
2007 N.Y. Misc. LEXIS 4462 (Sup. Ct. Queens Cty. 2007) ........................................................ 4
Drapaniotis v. 36-08 33rd St. Corp.,
732 N.Y.S.2d 583 (2d Dep’t 2001) ............................................................................................. 5
Gonzalez v. 855 MRU LLC,
2022 N.Y. Misc. LEXIS 8929 (Sup. Ct. N.Y. Cty. 2022) ............................................................ 4
Jacobs v. Johnston,
97 A.D.3d 538 (2d Dep’t 2012) .................................................................................................. 4
Kent Realty, LLC v. Danica Grp., LLC,
102 A.D.3d 927 (2d Dep’t 2013) ................................................................................................. 7
Maldonado v. Liberty Elevator Corp.,
2020 NYLJ Lexis 1795 (Sup. Ct. N.Y. Cty. 2020)..................................................................... 3
Mateo v. City of New York,
282 A.D.2d 313 (1st Dep’t 2001) ............................................................................................... 5
Pannone v. Silberstein,
40 A.D.3d 327 (1st Dep’t 2007) ................................................................................................. 5
Reardon v. Macy’s, Inc.,
191 A.D.3d 712 (2d Dep’t 2021) ................................................................................................ 4
Rosenberg & Estis, P.C. v. Bergos,
18 A.D.3d 218 (1st Dep’t 2005) ................................................................................................. 5
Ruiz v. Park Gramercy Owners Corp.,
182 A.D.3d 471 (1st Dep’t 2020) ............................................................................................... 3
Singh v. CBCS Constr. Corp.,
137 A.D.3d 1250 (2d Dep’t 2016) ............................................................................................... 7
Sky Coverage Inc. v Alwex Inc.,
202 A.D.3d 454 (1st Dep’t 2022) ............................................................................................... 3
Slovney v. Nasso,
153 A.D.3d 962 (2d Dep’t 2017) ............................................................................................. 6, 7
Vargas v. Villa Josefa Realty Corp.,
28 A.D.3d 389 (1st Dep’t 2006) ................................................................................................. 3
Statutes
22 N.Y.C.R.R. § 202.21 ...................................................................................................... 2, 3, 4, 6
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Plaintiffs Yasemin Tekiner and Zeynep Tekiner respectfully submit this Reply Memorandum
of Law in further support of their motion to vacate the Note of Issue and Certificate of Readiness
filed by Defendants Bremen House Inc., German News Company, Inc., Berrin Tekiner, Gonca
Chelsea, and Billur Akipek (collectively, “Defendants”) on December 28, 2022 (NYSCEF Doc. 997)
(“Defendants’ Note of Issue”), as well as the Note of Issue and Certificate of Readiness filed by
Plaintiffs on December 28, 2022 (NYSCEF Doc. 998) (“Plaintiffs’ Note of Issue”).
PRELIMINARY STATEMENT
Rather than trying to “profit by their own inaction” (Opp. at 1), Plaintiffs only seek that
which they have always been entitled to: “open and far-reaching pretrial discovery.” Anonymous
v. High School for Envtl. Studies, 32 A.D.3d 353, 358 (1st Dep’t 2006). In their attempts to block
this disclosure, Defendants have employed a continuous sequence of obstructionist tactics. These
tactics are described at length in Plaintiffs’ pending motions, including Yasemin’s Reply to
Defendants’ Omnibus Opposition to Yasemin’s Motions to Compel, filed herewith. The Court
has recognized that Defendants should not be permitted to turn deadlines “into a weapon for the
other side to just let things play out.” NYSCEF Doc. 1238 at 24:3-9. Yasemin has diligently
pursued material and necessary discovery from Defendants. Thus any argument that Yasemin
“waived” discovery is wholly inaccurate.
It is also inaccurate that discovery is “complete … with one exception”. See NYSCEF
Doc. 997, Addendum ¶ 1. Defendants acknowledged as much in their bare-bones expert
disclosures, stating that one of their experts will opine on “the business valuation of the Company
Defendants and its underlying assets prior to and following the sale of certain Company assets to
Extell Development in 2020.” Of course, Defendants have not produced the documents necessary
to support such an opinion, let alone sufficient to adequately cross examine such expert.
Defendants fail to address this anywhere in their Opposition. As a result, Defendants’ Note of
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Issue, purporting to certify that all necessary discovery is completed or waived except for a single
deposition, is materially inaccurate and should be vacated.
Further, a ruling in Plaintiffs’ favor would not, as Defendants’ straw man argument goes,
create any new loophole preventing cases from ever getting to trial: 22 N.Y.C.R.R. § 202.21(e)
explicitly provides that the Court may exercise its discretion to vacate a Note of Issue where, as
here, there is no legitimate dispute that the case is not ready for trial. The Court should vacate the
Notes of Issue and allow the Parties to complete fact and expert discovery.
BACKGROUND
Defendants claim that the Court denied Yasemin’s request to extend the Note of Issue
deadline during the hearing on December 19, 2022, but omit the rest of the Court’s statement on
this subject: “[i]f you want to make a motion between now and the note of issue date for post-note
discovery or to complete discovery that should have happened before but for reasons that you’re
describing, the defendants frustrated; you can do that.” Opp. at 2-3; NYSCEF Doc. 1001, Tr. 53:7-
11. Through this Motion, and the motion papers incorporated by reference herein, Plaintiffs have
done just that.
Defendants also mischaracterize how much discovery needs to be completed. See Opp. at
3. Plaintiffs are not pursuing “nearly all discovery in the case.” Opp. at 3. Rather, Plaintiffs only
seek the critical information that Defendants have purposefully shielded from them throughout
discovery. Defendants’ conduct has necessarily limited Plaintiffs’ ability to conduct “open and far-
reaching discovery” up to this point. For ample factual support, Plaintiffs hereby rely on and
incorporate by reference herein their papers in support of (1) 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; (2)
Plaintiff’s December 21, 2022 motion to compel Defendants to produce all non-privileged
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documents; (3) Plaintiff’s December 22, 2022 motion to compel Defendants to (a) provide their
consent for subpoenas to certain hospitals pursuant to CPLR 3122(a); and (b) produce all
documents responsive to Yasemin’s narrower set of document requests pursuant to CPLR 3124;
and (4) Plaintiff’s motion to compel records and depositions pursuant to CPLR 3124. See NYSCEF
Doc. 973-979; NYSCEF Doc. 951-960; NYSCEF Doc. 965-968; NYSCEF Doc. 980-994.
ARGUMENT
I. LEGAL STANDARD
Defendants initially agree with Plaintiffs that a note of issue may be vacated if “a material
fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply
with the requirements’ of [section 202.21] in some material respect.” Opp. at 9; see also Vargas v.
Villa Josefa Realty Corp., 28 A.D.3d 389, 390 (1st Dep’t 2006); Ruiz v. Park Gramercy Owners
Corp., 182 A.D.3d 471, 471 (1st Dep’t 2020); Maldonado v. Liberty Elevator Corp., 2020 NYLJ
Lexis 1795, at *5 (Sup. Ct. N.Y. Cty. 2020) (Reed, J.) (collecting cases). More than that, the First
Department recognizes that: “Where a party moves to vacate a note of issue, the only showing
necessary on the motion is that ‘a material fact in the certificate of readiness is incorrect, or that
the certificate of readiness fails to comply with the requirements of ... section [202.21] in some
material respect.’” Sky Coverage Inc. v Alwex Inc., 202 A.D.3d 454, 454 (1st Dep’t 2022)
(emphasis added) (quoting Vargas, 28 A.D.3d at 390).
The legal standard that Defendants advocate for and apply, however, (and on which their
waiver argument relies) is buried in a footnote of their Opposition and purports to require “unusual
or unanticipated circumstances.” Opp. at 7, n.4. This standard only applies to motions to vacate a
note of issue that are made outside the 20-day limit prescribed by 22 N.Y.C.R.R. § 202.21. See
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Reardon v. Macy’s, Inc., 191 A.D.3d 712, 714 (2d Dep’t 2021). 1 Where, as here, “a party’s motion
to vacate a note of issue is timely, the party is required only to demonstrate why the case is not
ready for trial.” Reardon, 191 A.D.3d at 714 (quotations and alterations omitted); see also Jacobs
v. Johnston, 97 A.D.3d 538, 538 (2d Dep’t 2012). 2
II. PLAINTIFFS HAVE NOT WAIVED THEIR RIGHT TO DISCOVERY
Defendants argue that they were correct to indicate on their note of issue that Plaintiff
“waived” discovery, and that therefore their note of issue should not be struck. Opp. at 5. Plaintiffs
have waived nothing. And courts in circumstances similar to these have rejected a party’s
“erroneous, unilateral, [and] premature” assertion that a waiver renders the case ready for trial,
especially where open discovery matters are pending before the Court. Dragutescu v. N.Y.C. Transit
Auth., 2007 N.Y. Misc. LEXIS 4462, at *5 (Sup. Ct. Queens Cty. 2007); see also Cromer v. Yellen,
268 A.D.2d 381, 381 (1st Dep’t 2000) (“Since it was clear that discovery was neither completed nor
waived, plaintiff’s certificate of readiness violated 22 NYCRR 202.21” and vacatur was required).
Defendants’ waiver argument is particularly off base where, as here, the party claiming waiver has
failed to provide authorization and consent for hospital subpoenas. Gonzalez v. 855 MRU LLC, 2022
N.Y. Misc. LEXIS 8929, at *3-4 (Sup. Ct. N.Y. Cty. 2022).
The cases Defendants offer are inapposite. Unlike the party seeking vacatur in Mateo v.
City of New York, Plaintiffs have not “repeatedly failed to comply with discovery orders” and have
1
As a consequence, Defendants’ case law applying this standard does not control. For example, in Colon v. Yen Ru
Jin, the court held that “[d]efendant failed to demonstrate any unusual or unanticipated circumstances warranting
vacatur of the note of issue more than three months after it was served on him.” 45 A.D.3d 359, 359-60 (1st Dep’t
2007). Unlike the defendant in Colon, here Plaintiffs moved to vacate each Note of Issue within thirteen days of its
filing, and thus, well within the 20-day deadline. See 22 N.Y.C.R.R. § 202.21(e).
2
In any event, Plaintiffs meet the stricter standard. Here, the unusual and unanticipated circumstances are
Defendants’ efforts to frustrate discovery, including withholding key documents for more than a year and then
producing thousands of these documents right before, during, and after key party depositions, and then again on
December 23, 2022.
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established that Defendants’ certificate of readiness contains an incorrect material fact. 282 A.D.2d
313, 313-14 (1st Dep’t 2001). And unlike the defendants in Barlow v. Skroupa, Plaintiffs are only
seeking to complete specific discovery that was begun or served long before the Note of Issue
filing and have, in each instance, moved to compel such disclosure. 2022 N.Y. Misc. LEXIS 8421,
at *11-14 (Sup. Ct. N.Y. Co. 2022). Pannone and Rosenberg are also of no help to Defendants
because, in those cases, the court held that discovery was waived because the parties seeking
vacatur failed to comply with a court order stating that a physical examination would be waived if
not completed by a certain date. See Pannone v. Silberstein, 40 A.D.3d 327, 328 (1st Dep’t 2007);
cf. Rosenberg & Estis, P.C. v. Bergos, 18 A.D.3d 218, 218 (1st Dep’t 2005). Plaintiffs have not
waived their right to discovery. Defendants should not be rewarded for running out the clock and
weaponizing the Note of Issue deadline.
III. DEFENDANTS ADMIT THAT DISCOVERY IS INCOMPLETE
Where, as here, “the parties have, in effect, conceded that discovery in this matter has not
been completed, … the note of issue should be vacated.” Drapaniotis v. 36-08 33rd St. Corp., 732
N.Y.S.2d 583, 583 (2d Dep’t 2001). Defendants disclosed experts who will necessarily rely on
financial records they refused to provide and then unsuccessfully moved to quash when Plaintiffs
sought records directly from the bank. NYSCEF Doc. 1090; NYSCEF Doc. 688. Putting aside
Defendants’ hypocrisy in arguing such financial records were “utterly irrelevant” (NYSCEF Doc.
689, at 5), their expert disclosure contemplates the production of financial records to support an
opinion regarding “the business valuation of the Company Defendants and its underlying assets
prior to and following the sale of certain Company assets to Extell Development in 2020.”
Defendants have no answer to this admission, nor could they.
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IV. PLAINTIFFS’ NOTE OF ISSUE IS BOTH PROPER AND A NULLITY
Defendants argue that Plaintiffs’ Note of Issue is improper because the form “requires the
filer to indicate as to each of multiple categories whether it has been completed, waived, or is not
required, by checking one of those three boxes.” NYSCEF Doc. 1217 at p. 6 (emphasis added).
According to Defendants, Plaintiffs’ insertion of the word “[i]ncomplete” constitutes an attempt by
Plaintiffs to “craft a NOI that dodges the statutory requirements.” Id. However, the plain language
of 22 N.Y.C.R.R. § 202.21 makes clear that the provided form is not sacrosanct, and can be changed:
“The note of issue and certificate of readiness shall read substantially as follows:” (emphasis added).
Moreover, at the December 19, 2022 hearing, the Court specifically told Plaintiffs that they could
file their note of issue with an “asterisk … saying that it is in your view subject to motions pending.”
NYSCEF Doc. 1001 at 47:12-21. Other courts have recognized as much, vacating notes of issue
where a party certifies that the case is not ready for trial. E.g., Slovney v. Nasso, 153 A.D.3d 962,
962 (2d Dep’t 2017) (vacating note of issue where “the plaintiff’s certificate of readiness stated, inter
alia, that necessary discovery had not been completed, that there were outstanding requests for
discovery, and that the case was not ready for trial”).
Ultimately, Plaintiffs could not certify to something that was not true. As Plaintiffs have
explained previously, critical discovery remains outstanding, and this discovery has not been
waived, nor is it optional. Further, Plaintiffs’ certification—that discovery is incomplete—is based
on more than just their pending motions. Defendants agree, at least with respect to Gonca’s
deposition, that fact discovery is unfinished. NYSCEF Doc. 1083. And they agree that the parties
have not exchanged expert reports or deposed each others’ experts. See NYSCEF Doc. 1238 at
37:13-17, 38:11-13. Their post-hoc offer to waive expert discovery is contrary to their December
27, 2022 expert disclosure and, in any event, Defendants cannot waive Plaintiffs’ right to material
and necessary fact and expert discovery.
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Defendants also argue that the volume of discovery that remains outstanding somehow
precludes vacatur. E.g., Opp. at 1. That twisted logic would mean that the more successful a party is
at preventing discovery and running out the clock, the more likely their gambit is to succeed. Courts
impose no such threshold for the amount of discovery remaining. To the contrary, courts routinely
vacate notes of issue where “substantial” discovery remains outstanding. Slovney, 153 A.D.3d at
962; see also, e.g., Singh v. CBCS Constr. Corp., 137 A.D.3d 1250, 1250 (2d Dep’t 2016) (vacating
note of issue where “discovery was not complete in that the depositions of the parties and nonparty
witnesses had physical examinations of the plaintiff had not occurred, properly executed medical
authorizations had not been provided, there were outstanding requests for discovery, and the case
was not ready for trial”); Kent Realty, LLC v. Danica Grp., LLC, 102 A.D.3d 927, 927-28 (2d Dep’t
2013) (vacating note of issue where “discovery was not complete in that the deposition of a nonparty
witness had not taken place and the actions were not ready for trial”).
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CONCLUSION
For all the foregoing reasons, Plaintiffs respectfully request that the Court vacate both
Defendants’ Note of Issue and Plaintiffs’ Note of Issue and extend discovery by sixty (60) days
from the latest decision by the Court on Plaintiffs’ pending discovery motions.
Dated: February 14, 2023 Respectfully submitted,
New York, New York
/s/ Benjamin H. Weissman
Benjamin H. Weissman
FOLEY HOAG LLP
1301 Avenue of the Americas
New York, NY 10019
(212) 812-0351
bweissman@foleyhoag.com
Attorneys for Plaintiff Yasemin Tekiner
Michele Kahn
KAHN & GOLDBERG, LLP
555 Fifth Avenue, 14th Floor
New York, New York 10017
Telephone: (212) 687-5066
mk@kahngoldberg.com
Attorneys for Plaintiff Zeynep Tekiner
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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
less than 4,200 words.
Dated: New York, New York
February 14, 2023
/s/ Benjamin H. Weissman
Benjamin H. Weissman
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FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION: NEW YORK COUNTY -------------------------------------------------------------- x YASEMIN TEKINER, in her individual capacity, as : Index No.: 657193/2020 a beneficiary and a Trustee of The Yasemin Tekiner : 2011 Descendants Trust and derivatively as a holder : Commercial Division Part 3 of equitable interests in a shareholder or a member : of the Company Defendants, : Hon. Joel M. Cohen, J.S.C. Plaintiff, : : Motion Seq. No. 46 - 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. : -------------------------------------------------------------- x 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. : -------------------------------------------------------------- x REPLY MEMORANDUM OF LAW OF PLAINTIFFS YASEMIN TEKINER AND ZEYNEP TEKINER IN FURTHER SUPPORT OF THEIR MOTION TO VACATE DEFENDANTS’ AND PLAINTIFFS’ NOTES OF ISSUE 1 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT .................................................................................................................................. 3 I. Legal Standard .................................................................................................................... 3 II. Plaintiffs Have Not Waived Their Right to Discovery ....................................................... 4 III. Defendants Admit that Discovery Is Incomplete ............................................................. 5 IV. Plaintiffs’ Note of Issue is Both Proper and a Nullity...................................................... 6 CONCLUSION ............................................................................................................................... 8 i 2 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 TABLE OF AUTHORITIES Cases Barlow v. Skroupa, 2022 N.Y. Misc. LEXIS 8421 (Sup. Ct. N.Y. Co. 2022) ........................................................... 5 Dragutescu v. N.Y.C. Transit Auth., 2007 N.Y. Misc. LEXIS 4462 (Sup. Ct. Queens Cty. 2007) ........................................................ 4 Drapaniotis v. 36-08 33rd St. Corp., 732 N.Y.S.2d 583 (2d Dep’t 2001) ............................................................................................. 5 Gonzalez v. 855 MRU LLC, 2022 N.Y. Misc. LEXIS 8929 (Sup. Ct. N.Y. Cty. 2022) ............................................................ 4 Jacobs v. Johnston, 97 A.D.3d 538 (2d Dep’t 2012) .................................................................................................. 4 Kent Realty, LLC v. Danica Grp., LLC, 102 A.D.3d 927 (2d Dep’t 2013) ................................................................................................. 7 Maldonado v. Liberty Elevator Corp., 2020 NYLJ Lexis 1795 (Sup. Ct. N.Y. Cty. 2020)..................................................................... 3 Mateo v. City of New York, 282 A.D.2d 313 (1st Dep’t 2001) ............................................................................................... 5 Pannone v. Silberstein, 40 A.D.3d 327 (1st Dep’t 2007) ................................................................................................. 5 Reardon v. Macy’s, Inc., 191 A.D.3d 712 (2d Dep’t 2021) ................................................................................................ 4 Rosenberg & Estis, P.C. v. Bergos, 18 A.D.3d 218 (1st Dep’t 2005) ................................................................................................. 5 Ruiz v. Park Gramercy Owners Corp., 182 A.D.3d 471 (1st Dep’t 2020) ............................................................................................... 3 Singh v. CBCS Constr. Corp., 137 A.D.3d 1250 (2d Dep’t 2016) ............................................................................................... 7 Sky Coverage Inc. v Alwex Inc., 202 A.D.3d 454 (1st Dep’t 2022) ............................................................................................... 3 Slovney v. Nasso, 153 A.D.3d 962 (2d Dep’t 2017) ............................................................................................. 6, 7 Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389 (1st Dep’t 2006) ................................................................................................. 3 Statutes 22 N.Y.C.R.R. § 202.21 ...................................................................................................... 2, 3, 4, 6 ii 3 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 Plaintiffs Yasemin Tekiner and Zeynep Tekiner respectfully submit this Reply Memorandum of Law in further support of their motion to vacate the Note of Issue and Certificate of Readiness filed by Defendants Bremen House Inc., German News Company, Inc., Berrin Tekiner, Gonca Chelsea, and Billur Akipek (collectively, “Defendants”) on December 28, 2022 (NYSCEF Doc. 997) (“Defendants’ Note of Issue”), as well as the Note of Issue and Certificate of Readiness filed by Plaintiffs on December 28, 2022 (NYSCEF Doc. 998) (“Plaintiffs’ Note of Issue”). PRELIMINARY STATEMENT Rather than trying to “profit by their own inaction” (Opp. at 1), Plaintiffs only seek that which they have always been entitled to: “open and far-reaching pretrial discovery.” Anonymous v. High School for Envtl. Studies, 32 A.D.3d 353, 358 (1st Dep’t 2006). In their attempts to block this disclosure, Defendants have employed a continuous sequence of obstructionist tactics. These tactics are described at length in Plaintiffs’ pending motions, including Yasemin’s Reply to Defendants’ Omnibus Opposition to Yasemin’s Motions to Compel, filed herewith. The Court has recognized that Defendants should not be permitted to turn deadlines “into a weapon for the other side to just let things play out.” NYSCEF Doc. 1238 at 24:3-9. Yasemin has diligently pursued material and necessary discovery from Defendants. Thus any argument that Yasemin “waived” discovery is wholly inaccurate. It is also inaccurate that discovery is “complete … with one exception”. See NYSCEF Doc. 997, Addendum ¶ 1. Defendants acknowledged as much in their bare-bones expert disclosures, stating that one of their experts will opine on “the business valuation of the Company Defendants and its underlying assets prior to and following the sale of certain Company assets to Extell Development in 2020.” Of course, Defendants have not produced the documents necessary to support such an opinion, let alone sufficient to adequately cross examine such expert. Defendants fail to address this anywhere in their Opposition. As a result, Defendants’ Note of 4 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 Issue, purporting to certify that all necessary discovery is completed or waived except for a single deposition, is materially inaccurate and should be vacated. Further, a ruling in Plaintiffs’ favor would not, as Defendants’ straw man argument goes, create any new loophole preventing cases from ever getting to trial: 22 N.Y.C.R.R. § 202.21(e) explicitly provides that the Court may exercise its discretion to vacate a Note of Issue where, as here, there is no legitimate dispute that the case is not ready for trial. The Court should vacate the Notes of Issue and allow the Parties to complete fact and expert discovery. BACKGROUND Defendants claim that the Court denied Yasemin’s request to extend the Note of Issue deadline during the hearing on December 19, 2022, but omit the rest of the Court’s statement on this subject: “[i]f you want to make a motion between now and the note of issue date for post-note discovery or to complete discovery that should have happened before but for reasons that you’re describing, the defendants frustrated; you can do that.” Opp. at 2-3; NYSCEF Doc. 1001, Tr. 53:7- 11. Through this Motion, and the motion papers incorporated by reference herein, Plaintiffs have done just that. Defendants also mischaracterize how much discovery needs to be completed. See Opp. at 3. Plaintiffs are not pursuing “nearly all discovery in the case.” Opp. at 3. Rather, Plaintiffs only seek the critical information that Defendants have purposefully shielded from them throughout discovery. Defendants’ conduct has necessarily limited Plaintiffs’ ability to conduct “open and far- reaching discovery” up to this point. For ample factual support, Plaintiffs hereby rely on and incorporate by reference herein their papers in support of (1) 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; (2) Plaintiff’s December 21, 2022 motion to compel Defendants to produce all non-privileged 2 5 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 documents; (3) Plaintiff’s December 22, 2022 motion to compel Defendants to (a) provide their consent for subpoenas to certain hospitals pursuant to CPLR 3122(a); and (b) produce all documents responsive to Yasemin’s narrower set of document requests pursuant to CPLR 3124; and (4) Plaintiff’s motion to compel records and depositions pursuant to CPLR 3124. See NYSCEF Doc. 973-979; NYSCEF Doc. 951-960; NYSCEF Doc. 965-968; NYSCEF Doc. 980-994. ARGUMENT I. LEGAL STANDARD Defendants initially agree with Plaintiffs that a note of issue may be vacated if “a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements’ of [section 202.21] in some material respect.” Opp. at 9; see also Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390 (1st Dep’t 2006); Ruiz v. Park Gramercy Owners Corp., 182 A.D.3d 471, 471 (1st Dep’t 2020); Maldonado v. Liberty Elevator Corp., 2020 NYLJ Lexis 1795, at *5 (Sup. Ct. N.Y. Cty. 2020) (Reed, J.) (collecting cases). More than that, the First Department recognizes that: “Where a party moves to vacate a note of issue, the only showing necessary on the motion is that ‘a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of ... section [202.21] in some material respect.’” Sky Coverage Inc. v Alwex Inc., 202 A.D.3d 454, 454 (1st Dep’t 2022) (emphasis added) (quoting Vargas, 28 A.D.3d at 390). The legal standard that Defendants advocate for and apply, however, (and on which their waiver argument relies) is buried in a footnote of their Opposition and purports to require “unusual or unanticipated circumstances.” Opp. at 7, n.4. This standard only applies to motions to vacate a note of issue that are made outside the 20-day limit prescribed by 22 N.Y.C.R.R. § 202.21. See 3 6 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 Reardon v. Macy’s, Inc., 191 A.D.3d 712, 714 (2d Dep’t 2021). 1 Where, as here, “a party’s motion to vacate a note of issue is timely, the party is required only to demonstrate why the case is not ready for trial.” Reardon, 191 A.D.3d at 714 (quotations and alterations omitted); see also Jacobs v. Johnston, 97 A.D.3d 538, 538 (2d Dep’t 2012). 2 II. PLAINTIFFS HAVE NOT WAIVED THEIR RIGHT TO DISCOVERY Defendants argue that they were correct to indicate on their note of issue that Plaintiff “waived” discovery, and that therefore their note of issue should not be struck. Opp. at 5. Plaintiffs have waived nothing. And courts in circumstances similar to these have rejected a party’s “erroneous, unilateral, [and] premature” assertion that a waiver renders the case ready for trial, especially where open discovery matters are pending before the Court. Dragutescu v. N.Y.C. Transit Auth., 2007 N.Y. Misc. LEXIS 4462, at *5 (Sup. Ct. Queens Cty. 2007); see also Cromer v. Yellen, 268 A.D.2d 381, 381 (1st Dep’t 2000) (“Since it was clear that discovery was neither completed nor waived, plaintiff’s certificate of readiness violated 22 NYCRR 202.21” and vacatur was required). Defendants’ waiver argument is particularly off base where, as here, the party claiming waiver has failed to provide authorization and consent for hospital subpoenas. Gonzalez v. 855 MRU LLC, 2022 N.Y. Misc. LEXIS 8929, at *3-4 (Sup. Ct. N.Y. Cty. 2022). The cases Defendants offer are inapposite. Unlike the party seeking vacatur in Mateo v. City of New York, Plaintiffs have not “repeatedly failed to comply with discovery orders” and have 1 As a consequence, Defendants’ case law applying this standard does not control. For example, in Colon v. Yen Ru Jin, the court held that “[d]efendant failed to demonstrate any unusual or unanticipated circumstances warranting vacatur of the note of issue more than three months after it was served on him.” 45 A.D.3d 359, 359-60 (1st Dep’t 2007). Unlike the defendant in Colon, here Plaintiffs moved to vacate each Note of Issue within thirteen days of its filing, and thus, well within the 20-day deadline. See 22 N.Y.C.R.R. § 202.21(e). 2 In any event, Plaintiffs meet the stricter standard. Here, the unusual and unanticipated circumstances are Defendants’ efforts to frustrate discovery, including withholding key documents for more than a year and then producing thousands of these documents right before, during, and after key party depositions, and then again on December 23, 2022. 4 7 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 established that Defendants’ certificate of readiness contains an incorrect material fact. 282 A.D.2d 313, 313-14 (1st Dep’t 2001). And unlike the defendants in Barlow v. Skroupa, Plaintiffs are only seeking to complete specific discovery that was begun or served long before the Note of Issue filing and have, in each instance, moved to compel such disclosure. 2022 N.Y. Misc. LEXIS 8421, at *11-14 (Sup. Ct. N.Y. Co. 2022). Pannone and Rosenberg are also of no help to Defendants because, in those cases, the court held that discovery was waived because the parties seeking vacatur failed to comply with a court order stating that a physical examination would be waived if not completed by a certain date. See Pannone v. Silberstein, 40 A.D.3d 327, 328 (1st Dep’t 2007); cf. Rosenberg & Estis, P.C. v. Bergos, 18 A.D.3d 218, 218 (1st Dep’t 2005). Plaintiffs have not waived their right to discovery. Defendants should not be rewarded for running out the clock and weaponizing the Note of Issue deadline. III. DEFENDANTS ADMIT THAT DISCOVERY IS INCOMPLETE Where, as here, “the parties have, in effect, conceded that discovery in this matter has not been completed, … the note of issue should be vacated.” Drapaniotis v. 36-08 33rd St. Corp., 732 N.Y.S.2d 583, 583 (2d Dep’t 2001). Defendants disclosed experts who will necessarily rely on financial records they refused to provide and then unsuccessfully moved to quash when Plaintiffs sought records directly from the bank. NYSCEF Doc. 1090; NYSCEF Doc. 688. Putting aside Defendants’ hypocrisy in arguing such financial records were “utterly irrelevant” (NYSCEF Doc. 689, at 5), their expert disclosure contemplates the production of financial records to support an opinion regarding “the business valuation of the Company Defendants and its underlying assets prior to and following the sale of certain Company assets to Extell Development in 2020.” Defendants have no answer to this admission, nor could they. 5 8 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 IV. PLAINTIFFS’ NOTE OF ISSUE IS BOTH PROPER AND A NULLITY Defendants argue that Plaintiffs’ Note of Issue is improper because the form “requires the filer to indicate as to each of multiple categories whether it has been completed, waived, or is not required, by checking one of those three boxes.” NYSCEF Doc. 1217 at p. 6 (emphasis added). According to Defendants, Plaintiffs’ insertion of the word “[i]ncomplete” constitutes an attempt by Plaintiffs to “craft a NOI that dodges the statutory requirements.” Id. However, the plain language of 22 N.Y.C.R.R. § 202.21 makes clear that the provided form is not sacrosanct, and can be changed: “The note of issue and certificate of readiness shall read substantially as follows:” (emphasis added). Moreover, at the December 19, 2022 hearing, the Court specifically told Plaintiffs that they could file their note of issue with an “asterisk … saying that it is in your view subject to motions pending.” NYSCEF Doc. 1001 at 47:12-21. Other courts have recognized as much, vacating notes of issue where a party certifies that the case is not ready for trial. E.g., Slovney v. Nasso, 153 A.D.3d 962, 962 (2d Dep’t 2017) (vacating note of issue where “the plaintiff’s certificate of readiness stated, inter alia, that necessary discovery had not been completed, that there were outstanding requests for discovery, and that the case was not ready for trial”). Ultimately, Plaintiffs could not certify to something that was not true. As Plaintiffs have explained previously, critical discovery remains outstanding, and this discovery has not been waived, nor is it optional. Further, Plaintiffs’ certification—that discovery is incomplete—is based on more than just their pending motions. Defendants agree, at least with respect to Gonca’s deposition, that fact discovery is unfinished. NYSCEF Doc. 1083. And they agree that the parties have not exchanged expert reports or deposed each others’ experts. See NYSCEF Doc. 1238 at 37:13-17, 38:11-13. Their post-hoc offer to waive expert discovery is contrary to their December 27, 2022 expert disclosure and, in any event, Defendants cannot waive Plaintiffs’ right to material and necessary fact and expert discovery. 6 9 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 Defendants also argue that the volume of discovery that remains outstanding somehow precludes vacatur. E.g., Opp. at 1. That twisted logic would mean that the more successful a party is at preventing discovery and running out the clock, the more likely their gambit is to succeed. Courts impose no such threshold for the amount of discovery remaining. To the contrary, courts routinely vacate notes of issue where “substantial” discovery remains outstanding. Slovney, 153 A.D.3d at 962; see also, e.g., Singh v. CBCS Constr. Corp., 137 A.D.3d 1250, 1250 (2d Dep’t 2016) (vacating note of issue where “discovery was not complete in that the depositions of the parties and nonparty witnesses had physical examinations of the plaintiff had not occurred, properly executed medical authorizations had not been provided, there were outstanding requests for discovery, and the case was not ready for trial”); Kent Realty, LLC v. Danica Grp., LLC, 102 A.D.3d 927, 927-28 (2d Dep’t 2013) (vacating note of issue where “discovery was not complete in that the deposition of a nonparty witness had not taken place and the actions were not ready for trial”). 7 10 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 CONCLUSION For all the foregoing reasons, Plaintiffs respectfully request that the Court vacate both Defendants’ Note of Issue and Plaintiffs’ Note of Issue and extend discovery by sixty (60) days from the latest decision by the Court on Plaintiffs’ pending discovery motions. Dated: February 14, 2023 Respectfully submitted, New York, New York /s/ Benjamin H. Weissman Benjamin H. Weissman FOLEY HOAG LLP 1301 Avenue of the Americas New York, NY 10019 (212) 812-0351 bweissman@foleyhoag.com Attorneys for Plaintiff Yasemin Tekiner Michele Kahn KAHN & GOLDBERG, LLP 555 Fifth Avenue, 14th Floor New York, New York 10017 Telephone: (212) 687-5066 mk@kahngoldberg.com Attorneys for Plaintiff Zeynep Tekiner 8 11 of 12 FILED: NEW YORK COUNTY CLERK 02/14/2023 08:09 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1241 RECEIVED NYSCEF: 02/14/2023 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 less than 4,200 words. Dated: New York, New York February 14, 2023 /s/ Benjamin H. Weissman Benjamin H. Weissman 9 12 of 12