Preview
FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023
SUPREME COURT OF THE STATE OF NEW YORK
COMMERCIAL DIVISION, NEW YORK COUNTY
YASEMIN TEKINER, in her individual capacity, Index No.: 657193/2020
as a beneficiary and a Trustee of The Yasemin
Tekiner 2011 Descendants Trust and derivatively Comercial Division Part 3
as a holder of equitable interests in a shareholder or
a member of the Company Defendants, Hon. Joel M. Cohen, J.S.C.
Plaintiff,
Motion Seq. No. 63
- 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.
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MEMORANDUM OF LAW OF PLAINTIFFS YASEMIN TEKINER AND ZEYNEP
TEKINER IN SUPPORT OF THEIR ORDER TO SHOW CAUSE FOR LEAVE TO
RENEW APPLICATION FOR A PRELIMINARY INJUNCTION WITH TEMPORARY
RESTRAINING ORDER TO ENJOIN DEFENDANTS’ THREATENED SALE OF
PLAINTIFFS’ HOMES AND THEIR EVICTION THEREFROM
Benjamin H. Weissman Sanjay P. Ibrahim
FOLEY HOAG LLP Scott W. Parker
1301 Avenue of the Americas PARKER IBRAHIM & BERG LLP
New York, New York 10019 5 Penn Plaza, Suite 2371
Telephone: (212) 812-0351 New York, New York 10001
bweissman@foleyhoag.com Telephone: (212) 596-7037
sanjay.ibrahim@piblaw.com
scott.parker@piblaw.com
Attorneys for Plaintiff Yasemin Tekiner
Michele Kahn
KAHN & GOLDBERG, LLP
Attorneys for Proposed Intervenor-Plaintiff
Zeynep Tekiner
555 Fifth Avenue, 14th Floor
New York, New York 10017
(212) 687-5066
mk@kahngoldberg.com
Attorneys for Plaintiff Zeynep Tekiner
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... iii
PRELIMINARY STATEMENT ..................................................................................................1
FACTUAL BACKGROUND .......................................................................................................2
A. Yasemin’s Initial Request for Injunctive Relief, and Defendants’ Repeated
Assurances to the Court That They Would Not Seek to Evict Yasemin From Her
Home During the Pendency of this Case................................................................... 2
B. Yasemin’s Successful Motion to Renew and Her Reinstatement as a Director and
Officer of the Defendant Companies......................................................................... 5
C. Zeynep’s Initial Request for Injunctive Relief, and Defendants’ Assurances to the
Court that They Would Not Seek to Evict Zeynep from Her Home During the
Pendency of this Case................................................................................................ 5
D. Defendants’ Current Threats to Imminently Market and Sell Yasemin’s and
Zeynep’s Homes Out from Under Them Is Thinly-Veiled Retaliation for the
Appointment of an Independent Financial Monitor and Has Nothing to Do with
Business Judgment .................................................................................................... 7
ARGUMENT ..............................................................................................................................10
A. Yasemin’s and Zeynep’s Renewed Requests for Injunctive Relief Is Proper ....... 10
1. New Facts Are Now Available That Were Not Available at the Time of the
Prior Motions, Namely, that Defendants Have Decided to Market and Sell
Yasemin’s and Zeynep’s Homes ..................................................................... 10
2. Plaintiffs’ Motion Seeks to Preserve Status Quo ............................................. 12
B. Plaintiffs Have Satisfied the Standard for a Temporary Restraining Order and
Preliminary Injunction .......................................................................................... 12
1. Legal Standard .................................................................................................... 12
2. The Court Has Already Held That Plaintiffs Have Established A
Likelihood of Success on the Merits ................................................................... 13
3. Yasemin and Zeynep Will Suffer Irreparable Harm Without a Preliminary
Injunction ............................................................................................................ 14
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a. Irreparable Harm Will Result from Yasemin’s and Zeynep’s Loss of
Their Right to Reside in Their Homes ....................................................... 14
i. Yasemin Will Suffer Irreparable Harm................................................ 15
ii. Zeynep Will Suffer Irreparable Harm .................................................. 16
4. The Balance of Equities Weighs Heavily in Favor an Injunction ...................... 14
C. The Doctrine of Judicial Estoppel Precludes Defendants from Now Taking the
Position That They Are Permitted to Sell Yasemin’s and Zeynep’s Homes
During The Pendency of This Case, Which Would Be Inconsistent With Their
Prior Representations to the Court ......................................................................... 19
CONCLUSION ...........................................................................................................................20
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TABLE OF AUTHORITIES
Cases
Bass v WV Preserv. Partners, LLC,
209 AD3d 480 [1st Dept 2022] .............................................................................................. 14
Braschi v. Stahl Assocs. Co.,
74 N.Y.2d 201 [1989] ............................................................................................................. 14
D & L Holdings v Goldman Co.,
287 AD2d 65 [1st Dep’t 2001] ............................................................................................... 19
Doe v. Axelrod,
73 N.Y. 2d 748 (1988) ............................................................................................................ 12
Doe v. Dinkins,
192 AD2d 270 [1st Dept 1993] .............................................................................................. 13
Dooley v Dooley
2013 NY Slip Op 30082[U] [Sup. Ct., Suffolk Cty. 2013] .................................................... 14
Encompass Home & Auto Ins. Co. v. Makendy,
2017 N.Y. Misc. LEXIS 3818 [Sup. Ct. N.Y. Cty Oct. 3, 2017] ........................................... 10
Framapac Delicatessen v. Aetna Cas. & Sur. Co.,
249 AD2d 36 [1st Dep’t 1998] ............................................................................................... 10
Franco v 172 E. Holdings LLC,
2013 N.Y. Misc. LEXIS 410 (Sup. Ct. NY Cty. Feb. 1, 2013) .............................................. 14
Herman v 36 Gramercy Park Realty Assoc., LLC,
165 AD3d 405 [1st Dep’t 2018] ............................................................................................. 19
Holmes v W. T. Grant, Inc.,
71 Misc 2d 486 [Sup. Ct. Nassau Cty. 1972] ......................................................................... 14
Jones v Park Front Apts., LLC,
73 AD3d 612 [1st Dept 2010] ................................................................................................ 14
London Paint & Wallpaper Co., Inc. v Kesselman,
2015 N.Y. Misc. LEXIS 2744 [Sup. Ct. NY Cty. July 27, 2015] .......................................... 12
Luna v. Port Auth.,
21 AD3d 324 (1st Dep’t 2005) ............................................................................................... 10
Maas v Cornell Univ.,
253 AD2d 1 [3d Dept 1999] ................................................................................................... 19
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New Hampshire Ins. Co. v MF Global Fin. USA Inc.,
204 AD3d 141 [1st Dep’t 2022] ............................................................................................. 19
Pac. Alliance Asia Opportunity Fund L.P. v Kwok Ho Wan,
2020 NY Slip Op 33030[U] [Sup. Ct. N.Y. Cty. 2020] ......................................................... 19
Pdl Biopharma v Wohlstadter,
2018 N.Y. Misc. LEXIS 5780 [Sup Ct, NY Cty. Feb. 20, 2018] ........................................... 15
Post v. 120 East End Avenue Corp.,
62 NY2d 19 [Ct. App. 1984] .................................................................................................. 12
Ramos v City of New York,
61 AD3d 51 [1st Dept 2009] .................................................................................................. 10
Terrell v. Terrell
279 AD2d 301 [1st Dept 2001 ................................................................................................ 13
Tishman Constr. Corp. of New York v. City of New York,
280 AD2d 374 [1st Dept 2001] .............................................................................................. 10
Tompkins v Jackson,
20 Misc 3d 1108[A] [Sup Ct, NY Cty 2008] ......................................................................... 14
U.S. Reinsurance Corp. v. Humphreys,
205 AD2d 187 (1st Dept 1994) .............................................................................................. 12
Statutes
CPLR 2221 ................................................................................................................................... 10
CPLR 6301.....................................................................................................................................12
CPLR 6311 ................................................................................................................................... 12
CPLR 6313 ................................................................................................................................... 12
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Plaintiffs, Yasemin Tekiner (“Yasemin”) and Zeynep Tekiner (“Zeynep”), respectfully
submit this memorandum of law in support of their Order to Show Cause for leave to renew
Yasemin’s application for a preliminary injunction with temporary restraining order to enjoin
Defendants’ threatened sale of Yasemin’s home and her eviction therefrom; and Zeynep’s
application for injunctive relief preventing Defendants and their agents from retaliating against her
or changing the status quo of her relationship with the Defendant companies, including without
limitation enjoining them from firing her as a director and officer, taking away her salary and
benefits, or evicting her from her home.
PRELIMINARY STATEMENT
Mere days after this Court ordered the appointment of an independent financial monitor in
response to Plaintiffs’ motion for a temporary receiver, Defendants advised Yasemin and Zeynep
that they now seek to sell Plaintiffs’ homes and evict them. Yasemin and Zeynep respectfully
request that this Court enjoin Defendants’ latest efforts to retaliate against them. Having already
taken away Yasemin’s positions within the Companies and the salary that is her only income –
until the Court ordered Defendants to reinstate her and pay her salary – and having coerced Zeynep
into participating in Yasemin’s removal as a director and leaving Zeynep in constant fear of losing
her home and salary at any time, Defendants are now planning to engage in a repugnant act of
retaliation that even they previously claimed was unthinkable: taking away Yasemin’s and
Zeynep’s homes. Defendants have offered the pretext that this is merely a business decision, but
make no mistake: Defendants’ brazen retaliation was announced just days after the Court ordered
appointment of an independent financial monitor, and before the monitor could begin his work.
And Defendants’ supposed business justification is based on a Board approval that never actually
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happened. Allowing Defendants to sell Yasemin’s and Zeynep’s homes out from under them
would constitute irreparable harm to the Plaintiffs.
Moreover, Defendants’ most recent threatened act of retaliation flies in the face of their
numerous prior representations to the Court and Plaintiffs – upon which the Court and Plaintiffs
relied – that they would not seek to remove Plaintiffs from their homes. In previously denying the
portion of Yasemin’s request to enjoin Defendants from depriving her of her home, this Court
expressly relied on Defendants’ representations that Yasemin would be permitted to continue to
reside in her home during the pendency of this case. Similarly, in opposing Zeynep’s request for
an injunction preventing Defendants from evicting Zeynep from her home, Defendants
unequivocally represented to the Court and Zeynep that they would not seek to remove her from
her home. That Defendants have now apparently changed their mind warrants renewal of
Yasemin’s and Zeynep’s requests for injunctive relief to preserve the status quo and prevent
Yasemin and Zeynep from suffering the irreparable harm of losing their homes.
Accordingly, Defendants should be enjoined from marketing or selling Yasemin’s home
and Zeynep’s home, and from taking any action to in any way deprive Yasemin and Zeynep of
their right to reside in their respective homes, during the pendency of this case.
FACTUAL BACKGROUND
A. Yasemin’s Initial Request for Injunctive Relief, and Defendants’ Repeated
Assurances to the Court That They Would Not Seek to Evict Yasemin From Her
Home During the Pendency of this Case
On January 3, 2021, Yasemin filed her Complaint commencing this action. (NYSCEF
Doc. No. 2.) Contemporaneously with the filing of her Complaint, Yasemin sought a preliminary
injunction with temporary restraining order to enjoin Defendants from taking retaliatory measures
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against her, including by evicting her from her home. (NYSCEF Doc. No. 11) (the “Initial
OTSC”).
Yasemin has lived in her home located at 10819 Vicenza Way, Los Angeles, California
90077 (the “Yasemin Residence”), for nearly a decade. (NYSCEF Doc. No. 276, ¶23.) The
Yasemin Residence was purchased by defendant Bremen House, Inc. in 2014 with proceeds from
the sale of an apartment in which Yasemin lived in New York City. (Id.) Yasemin spent a year
researching the Los Angeles market before arranging for the purchase of the Yasemin Residence.
(Id.) Yasemin’s efforts paid off and – as Berrin admits – the Yasemin Residence has already
appreciated by more than $1.5 million for the company’s benefit. (NYSCEF Doc. No. 225, ¶41.)
Since 2014, Yasemin has leased the Yasemin Residence from defendant Bremen House, Inc., and
has made annual rental payments to Bremen House, Inc. using a portion of her bonus compensation
from the Company until recently, when Defendants eliminated Yasemin’s annual bonus
compensation because she filed this lawsuit. (See Affidavit of Yasemin Tekiner, dated May 18,
2023 (“Yasemin Aff.”), at ¶5.) Yasemin has paid and continues to pay numerous out-of-pocket
expenses relating to the Yasemin Residence. (Id., at ¶6.) In May 2021, then-counsel for the
Defendants that “going forward, Bremen House will no longer be paying any maintenance costs
associated with the California residence it is permitting Yasemin to reside in rent-free pending the
conclusion of the lawsuit, including but not limited to landscaping charges or water and gas bills.”
(Yasemin Aff., at Ex. A.) Since then, Yasemin has personally assumed all costs of repairs and
maintenance of the Yasemin Residence. (Yasemin Aff., ¶6.)
At the outset of this case, Yasemin was concerned that Defendants would try to evict her
and deprive her of her rights in the Yasemin Residence as retaliation for filing this lawsuit.
(NYSCEF Doc. No. 7, ¶¶26-27.) As such, in her Initial OTSC, Yasemin sought to enjoin
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Defendants from evicting her from her home during the pendency of this action. (NYSCEF Doc.
No. 11, at pp. 6, 18.) At the hearing on Yasemin’s Initial OTSC on January 25, 2021, counsel for
Defendants represented: “The individual defendants here have agreed for the rest of this suit until
this is either resolved or adjudicated that [Yasemin] can remain in the home.” (NYSCEF Doc. No.
97, at 42:22-24.) (emphasis added) Accordingly, counsel for Defendants assured the Court that
“the home should be off the table for purposes of this discussion [of injunctive relief] today.” (Id.
at 43:15-16.) As such, on January 25, 2021, the Court entered an Order denying Yasemin’s request
for a preliminary injunction, but specifically noted in the Order that “Defendants’ counsel
confirmed on the record that Plaintiff would not be deprived of the use of her company-owned
home in California . . . during the pendency of this litigation. The Court relied upon that
representation in deciding this motion.” (NYSCEF Doc. No. 87.)
Throughout this action, Defendants promised that Yasemin could continue to reside in the
Yasemin Residence during the pendency of this case. For example, on March 24, 2022, Defendant
Berrin Tekiner reaffirmed that, “[a]s promised previously, the Companies will allow Yasemin to
live in 10819 Vicenza Way throughout her lawsuit. However, in the event Defendants are
successful on their counterclaims, we reserve the right to evict Yasemin from 10819 Vicenza Way,
[and] sell the property . . . .” (NYSCEF Doc. No. 225, ¶44.) (emphasis added) On April 8, 2022,
Defendants further acknowledged that “[o]nce again, as with [Yasemin], Defendants will also
represent that, while this litigation is pending, they will (1) not evict Zeynep [from her home] . . .
.” (NYSCEF Doc. No. 339, at 19.) Berrin yet again reiterated this during her October 14, 2022
deposition:
When she started to sue us I already said we shouldn’t touch her
house and also we shouldn’t touch her health insurance. I am a
mother. I wouldn’t leave them homeless. All my life I try to keep
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them in comfort. So, I don’t know now about what way this litigation
is going, but I never thought of leaving [her] homeless.
(NYSCEF Doc. No. 1480, at 185:11-19.)
B. Yasemin’s Successful Motion to Renew and Her Reinstatement as a Director and
Officer of the Defendant Companies
As discovery continued in this case, and based upon the facts learned in Zeynep’s motion
to intervene, the depth and breadth of Defendants’ self-dealing and mismanagement, and flagrant
disregard of corporate formalities, came further into focus. Accordingly, on March 8, 2022,
Yasemin filed a Motion to Renew her Initial OTSC (the “First Motion to Renew”), again seeking
an order reinstating Yasemin to her positions as director and officer of defendants Bremen House,
Inc. and German News, Inc., and restoring her salary and benefits going forward. (NYSCEF Doc.
No. 198.) On April 18, 2022, after Yasemin established a likelihood of success on the merits, the
potential for irreparable harm, and that the balance of the equities weighed in her favor, the Court
granted Yasemin’s First Motion to Renew and reinstated her as a director and officer of the
Companies on the same terms as before her wrongful retaliatory termination. (NYSCEF Doc. No.
353.)
C. Zeynep’s Initial Request for Injunctive Relief, and Defendants’ Assurances to the
Court that They Would Not Seek to Evict Zeynep from Her Home During the
Pendency of this Case
On March 22, 2022, Zeynep moved to intervene in this matter (NYSCEF Doc. No. 215.)
In that motion, Zeynep included an application for an order to show cause for a preliminary
injunction with temporary restraining order to enjoin Defendants from taking retaliatory measures
against her, including a request that Defendants be enjoined from removing her from her home.
(Id.)
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Zeynep and her two daughters have lived in their home located at 31 White Plains Road,
Bronxville, New York (the “Zeynep Residence”) for six years. (See Affidavit of Zeynep Tekiner,
dated May 18, 2023 (“Zeynep Aff.”), at ¶4.) She moved in while her daughters were ages 12 and
14. (Id.) Her oldest daughter is now in college but still comes home, and her younger daughter is
a junior in high school and is looking forward to her senior year. (Id.) The Zeynep Residence
was purchased by defendant Bremen House, Inc. in 2017 with Company funds – presumably with
proceeds from the sale of 21 Dusenberry Lane, Bronxville, NY (the “Dusenberry Property”), in
which Zeynep and her daughters first lived when they came back to the United States from Turkey.
Zeynep had no choice but to move into the Dusenberry Property because at the time, she had been
living with her daughters in Turkey, was divorcing her husband and had literally virtually no
money except for funds that Defendant Berrin was sending her each month. (Id. at ¶6.) Berrin
gave Zeynep an ultimatum that if Zeynep stayed in Turkey, Berrin would stop giving her any funds
– but if Zeynep and her daughters moved to New York, Berrin assured Zeynep that she would live
in a Company owned house and would receive a salary – just as Gonca was receiving these same
benefits from the Companies. (Id. at ¶7.)
From the time Zeynep and her daughters first moved into the Zeynep Residence until
recently, Zeynep has leased the Zeynep Residence from defendant Bremen House, Inc., and has
made annual rental payments. (Id. at ¶10.) In or about 2021, the Company reduced Zeynep’s
salary (i.e., the bonus) and Zeynep was no longer able to pay rent. Zeynep also pays numerous
out-of-pocket expenses relating to the Property. (Id.)
Once Zeynep decided to intervene in this action alongside her sister Yasemin, she was
concerned that the Defendants would try to evict her and deprive her of her rights in the Zeynep
Property as retaliation for joining this lawsuit. (NYSCEF Doc. No. 217, ¶¶11, 54.) As such, in
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Zeynep’s Initial OTSC, Zeynep sought to enjoin the Defendants from evicting her from her home
during the pendency of this action. (Id.) In their opposition to Zeynep’s Initial OTSC, counsel for
the Defendants made the following representation to the Court regarding the Property:
Zeynep would not suffer the “hunger of indignities” she claims
without an injunction … : she would still live rent free in a multi-
million dollar home, receive health insurance, and have access to her
pension. … Once again, as with Plaintiff, Defendant will also
represent that, while this litigation is pending, they will (1) not evict
Zeynep from 31 White Plains Road; (2) pay taxes and homeowners
insurance on 31 White Plains Road; and (3) continue providing
health insurance for Zeynep and her dependents.
(NYSCEF Doc. No. 336, at 19.) As such, on April 18, 2022, the Court issued a Decision & Order
on Motion, granting Zeynep’s motion to intervene, but denying her request for preliminary
injunctive relief. (NYSCEF Doc. No. 354, at 1.) Although the Court did not explicitly address
Zeynep’s request for injunctive relief precluding Defendants from selling the Zeynep Residence
and evicting her, the Court held that, absent a specific threat to sell her residence, Zeynep’s request
for injunctive relief was speculative. (NYSCEF Doc. No. 370, Tr. 85:21-86:10.)
Defendant Berrin reiterated this during her deposition, testifying that:
Even – whatever happens in this lawsuit, I would always have
my daughters live in a house, even if they were so mean to me.
I would never leave them homeless.
(NYSCEF Doc. No. 1480, at Tr. 187:21-24.)
D. Defendants’ Current Threats to Imminently Market and Sell Yasemin’s and
Zeynep’s Homes Out from Under Them Is Thinly-Veiled Retaliation for the
Appointment of an Independent Financial Monitor and Has Nothing to Do with
Business Judgment
On April 14, 2023, the Court granted in part Plaintiffs’ motion for a temporary receiver
and directed the appointment of an independent financial monitor. (NYSCEF Doc. No. 1581.) On
April 20, 2023, Defendants advised that they intended to start marketing and sell Yasemin’s and
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Zeynep’s residences “by the end of April,” because “the Board approved the sale of all non-income
producing single-family residential properties owned by the Company.” (NYSCEF Doc. No.
1591.) While Defendants’ newly revealed intention to sell Yasemin’s and Zeynep’s residences is
inconsistent with Defendants’ multiple prior representations to this Court and Plaintiffs, it is
unfortunately perfectly consistent with their pattern of selling off the Company’s properties during
the course of this litigation at a dizzying pace. Indeed, since Extell sale in December 2020 – which
disposed of half of the Company’s portfolio of properties shortly before Yasemin commenced this
case – Defendants have sold seven additional properties, all while this lawsuit has been pending.
(Yasemin Aff., ¶8.)1 Defendants are carrying out their threat to liquidate everything and take and
hide the proceeds. (NYSCEF Doc. No. 217, ¶28.)
On April 24, 2023, Plaintiffs responded to Defendants’ letter, pointing out that, in fact, at
the June 2019 meeting to which the Defendants refer, the Board had only approved the sales of
two other homes – and had never approved the sale of either the Yasemin Residence or the Zeynep
Residence. (See NYSCEF Doc. No. 1592; NYSCEF Doc. Nos. 594 ¶ 6, 595). Plaintiffs also
reminded Defendants of their numerous representations to the contrary, and questioning the timing
of their letter, which was sent merely six days after the Court directed the appointment of an
independent financial monitor and before the monitor could be selected and begin his duties.
(NYSCEF Doc. No. 1592.) On April 26, 2023, Defendants responded that, notwithstanding the
lack of Board consent, “there is no sound business rationale for the Company to continue to own
non-income-producing, single family residential properties such as” Yasemin’s and Zeynep’s
1
As if the Extell sale, the sale of seven additional properties during the last two years, and the threatened sale of
Yasemin’s and Zeynep’s residences were not enough, Defendant Bremen House notified Plaintiffs on May 11, 2023
that it has retained a broker and intends, as manager of 254 W 35th St LLC, to sell the remaining crown jewel property
at 254 W. 35th Street, New York, New York. (See Affirmation of Scott W. Parker, dated May 18, 2023 (“Parker
Aff.”), at Ex. A.)
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residences.2 (Yasemin Aff., at Ex. B.) Defendants’ response ignored completely their prior
representations that they would not sell or evict Plaintiffs from the Residences. (Id.)
Defendants also attempted to manufacture legitimacy for their decision to sell Yasemin’s
and Zeynep’s homes by pointing to the prior sales of homes in which Defendants Berrin and Gonca
lived, and that Berrin and Gonca now live in homes owned in their own names. (Id.) This Court
previously correctly observed the flaw in Defendants’ argument, noting: “But [Berrin] and Gonca
are the ones who have flow of funds from the company and [Yasemin and Zeynep] don’t.”
(NYSCEF Doc. No. 1239, Tr. 31:24-25 (emphasis added).) In other words, Berrin and Gonca
were able to purchase homes for themselves using money paid to them by the Companies. (Id.)
Yasemin and Zeynep have no such luxury. (Id.)
On May 9, 2023, the Court selected Jay Borow of Berkeley Research Group, as the
independent financial monitor. (NYSCEF Doc. No. 1601.) One day later, Berrin again wrote to
Yasemin and Zeynep and informed them that brokers had been retained to market and sell both
Yasemin’s and Zeynep’s homes.
On May 16, 2023, Plaintiffs wrote to Berrin requesting information regarding the proposed
sales of the Residences and providing a number of business reasons why the sale of the Residences
might not benefit the Companies. (Yasemin Aff., at Ex. C.) Plaintiffs also provided a number of
alternative actions that the Companies could take to reduce expenses and increase revenue. (Id.)
As of today, Defendants have not responded. (Id. at ¶11.)
2
Notably, Defendants have not expressed an intention to sell Berrin’s vacation home in East Hampton located on
Marion Lane, which she only occasionally uses and which has substantially higher carrying costs than either
Yasemin’s or Zeynep’s Residences. (Yasemin Aff., ¶10.)
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ARGUMENT
A. Yasemin’s and Zeynep’s Renewed Requests for Injunctive Relief Is Proper
1. New Facts Are Now Available That Were Not Available at the Time of the
Prior Motions, Namely, that Defendants Have Decided to Market and Sell
Yasemin’s and Zeynep’s Homes
Pursuant to CPLR 2221(e), a motion for leave to renew must (1) “be based upon new facts
not offered on the prior motion that would change the prior determination” and (2) “contain
reasonable justification for the failure to present such facts on the prior motion.” Luna v. Port
Auth., 21 AD3d 324, 325 (1st Dep’t 2005) (quotations omitted). New facts are those that were
unavailable at the time of the prior motion. Id.; CPLR 2221(e)(2). Courts have “broad discretion
to grant renewal.” Framapac Delicatessen v. Aetna Cas. & Sur. Co., 249 AD2d 36, 36 [1st Dep’t
1998]. “A motion for leave to renew is intended to bring to the court’s attention new or additional
facts which, although in existence at the time the original motion was made, were unknown to the
movant and were, therefore not brought to the court’s attention.” Tishman Constr. Corp. of New
York v. City of New York, 280 AD2d 374, 376 [1st Dept 2001]. New York courts regularly grant
motions to renew requests for injunctive relief where facts subsequently come to light that warrant
relief different than that which was previously granted. Encompass Home & Auto Ins. Co. v.
Makendy, Index No. 160580/2015, 2017 N.Y. Misc. LEXIS 3818, at *4 [Sup. Ct. N.Y. Cty Oct.
3, 2017]. “[A] motion for leave to renew is not subject to any particular time constraints.” Ramos
v City of New York, 61 AD3d 51, 54 [1st Dept 2009]; see CPLR 2221(e).
Yasemin and Zeynep seek leave to renew based on new facts that were unavailable at the
time of their respective Initial OTSC: namely, that despite multiple, in-Court assurances to the
contrary, Defendants have recently hired brokers to market and sell their homes. The Court
expressly indicated that it relied on such representations in denying Yasemin’s Initial OTSC in
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which she sought to restrain Defendants from “impairing her right to occupy her home.”
(NYSCEF Doc. No. 5.) And Defendants made the same representation to the Court before the
Court denied Zeynep’s Initial OTSC. (NYSCEF Doc. No. 336, at 19.)
The Court based its initial denial of Yasemin’s request for injunctive relief in part on the
fact that Defendants had not yet explicitly threatened to evict Yasemin from her home, noting:
“And, again, generally for a TRO, . . . the one that you point out that seems to be the most
immediate[], is they cut off all of her income and kick her out of her house and that maybe you
can’t recover, you can’t -- that could be irreparable in the sense that the case you cited says you
shouldn’t have to be destitute and that, ultimately, get a recovery. But, the specifics of that are a
little vague to me because unless they have threatened to do that, it seems like a difficult exercise
of equitable powers to enjoin things that may happen, but which haven’t been threatened
yet.” (NYSCEF Doc. No. 36, Tr. 14:2-14.)
Similarly, although not specifically addressing the threat of eviction, the Court expressed
the same sentiment in denying Zeynep’s motion for injunctive relief:
I think in deciding whether to grant injunctive relief, it’s important
to have a more concrete context than a generalized concern based on
things that happened either five years ago or even I guess a little more
than a year ago.
…
So I think we'll have to just see what happens, but I don't think the
current record gives rise to sufficient threat of irreparable harm to
warrant a court order.
(NYSCEF Doc. No. 370, Tr. p. 86.)
Defendants, however, have now explicitly and unequivocally threatened to do so. Since
the Court ordered the appointment of an independent financial monitor, Defendants revealed that
they have changed their minds: they have retained brokers, and in fact they do intend to
imminently market and sell the Yasemin Residence and Zeynep Residence and permanently
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deprive Yasemin and Zeynep of their homes. (See NYSCEF Doc. No. 1591; Yasemin Aff., Ex.
C.)
2. Plaintiffs’ Motion Seeks to Preserve Status Quo
Plaintiffs’ instant Order to Show Cause to Renew seeks only to preserve the status quo as
it was when Yasemin’s and Zeynep’s respective original injunction motions were filed – which is
the very purpose of preliminary injunctive relief, and also the point of a renewal motion. See U.S.
Reinsurance Corp. v. Humphreys, 205 AD2d 187, 192 (1st Dept 1994). Moreover, “[t]he threat
of termination of a lease and forfeiture, standing alone, has been sufficient to permit maintenance
of the status quo by injunction.” London Paint & Wallpaper Co., Inc. v Kesselman, 2015 N.Y.
Misc. LEXIS 2744, at *10-*11 [Sup. Ct. NY Cty. July 27, 2015] (citing Post v. 120 East End
Avenue Corp., 62 NY2d 19, 26 [Ct. App. 1984]).
B. Plaintiffs Have Satisfied the Standard for a Temporary Restraining Order and
Preliminary Injunction
1. Legal Standard
A preliminary injunction may be granted “in any action where the plaintiff has demanded
and would be entitled to a judgment restraining the defendant from the commission or continuance
of an act, which, if committed or continued during the pendency of the action, would produce
injury to the plaintiff.” CPLR §§ 6301, 6311. Specifically, a preliminary injunction will be granted
when the party seeking such relief demonstrates: “(1) a likelihood of ultimate success on the
merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance
of equities tipping in the moving party’s favor.” Doe v. Axelrod, 73 N.Y. 2d 748, 750 (1988).
A temporary restraining order likewise may be granted pending a hearing for a preliminary
injunction where “it appears that immediate and irreparable injury, loss or damage will result
unless the defendant is restrained before the hearing can be had.” CPLR §§ 6301, 6313. As
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discussed below, the equities of this case and the high risk of injury to Yasmin and Zeynep
resulting from Defendants’ threat to imminently and irreversibly sell their homes, warrant the
issuance of a temporary restraining order followed by a preliminary injunction.
2. The Court Has Already Held That Plaintiffs Have Established A Likelihood
of Success on the Merits
In determining whether a “likelihood of success” on the merits exists, a court need not
finally determine the merits of an action and a plaintiff need not demonstrate that success is an
absolute certainty. (See Doe v. Dinkins, 192 AD2d 270, 275-76 [1st Dept 1993].) A plaintiff is
only required to make a prima facie showing of the likelihood of success. (See Terrell v. Terrell,
279 AD2d 301, 303 [1st Dept 2001]; Akos Really Corp. v. Vandemark, 157AD2d 632, 634 [1st
Dept 1990].)
As this Court has held, a likelihood of success on the merits has been established. At the
hearing on Yasemin’s First Motion to Renew, the Court found:
Courts . . . get involved . . . when the process of shareholder voting
and other corporate decisions are potentially undermined by
conflicts of interest and self-dealing. In those situations, the
presumption of regularity may be undermined. And here, based on
information that I was not aware of at the time I made these initial
decisions, there is now what I consider to be evidence that throws
that into doubt and I think raises the likelihood of success on some
of these points to a level that I was not aware of . . . . Enough
evidence in my view has now bee
Preview
FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION, NEW YORK COUNTY YASEMIN TEKINER, in her individual capacity, Index No.: 657193/2020 as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively Comercial Division Part 3 as a holder of equitable interests in a shareholder or a member of the Company Defendants, Hon. Joel M. Cohen, J.S.C. Plaintiff, Motion Seq. No. 63 - 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. 1 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 MEMORANDUM OF LAW OF PLAINTIFFS YASEMIN TEKINER AND ZEYNEP TEKINER IN SUPPORT OF THEIR ORDER TO SHOW CAUSE FOR LEAVE TO RENEW APPLICATION FOR A PRELIMINARY INJUNCTION WITH TEMPORARY RESTRAINING ORDER TO ENJOIN DEFENDANTS’ THREATENED SALE OF PLAINTIFFS’ HOMES AND THEIR EVICTION THEREFROM Benjamin H. Weissman Sanjay P. Ibrahim FOLEY HOAG LLP Scott W. Parker 1301 Avenue of the Americas PARKER IBRAHIM & BERG LLP New York, New York 10019 5 Penn Plaza, Suite 2371 Telephone: (212) 812-0351 New York, New York 10001 bweissman@foleyhoag.com Telephone: (212) 596-7037 sanjay.ibrahim@piblaw.com scott.parker@piblaw.com Attorneys for Plaintiff Yasemin Tekiner Michele Kahn KAHN & GOLDBERG, LLP Attorneys for Proposed Intervenor-Plaintiff Zeynep Tekiner 555 Fifth Avenue, 14th Floor New York, New York 10017 (212) 687-5066 mk@kahngoldberg.com Attorneys for Plaintiff Zeynep Tekiner 2 2 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... iii PRELIMINARY STATEMENT ..................................................................................................1 FACTUAL BACKGROUND .......................................................................................................2 A. Yasemin’s Initial Request for Injunctive Relief, and Defendants’ Repeated Assurances to the Court That They Would Not Seek to Evict Yasemin From Her Home During the Pendency of this Case................................................................... 2 B. Yasemin’s Successful Motion to Renew and Her Reinstatement as a Director and Officer of the Defendant Companies......................................................................... 5 C. Zeynep’s Initial Request for Injunctive Relief, and Defendants’ Assurances to the Court that They Would Not Seek to Evict Zeynep from Her Home During the Pendency of this Case................................................................................................ 5 D. Defendants’ Current Threats to Imminently Market and Sell Yasemin’s and Zeynep’s Homes Out from Under Them Is Thinly-Veiled Retaliation for the Appointment of an Independent Financial Monitor and Has Nothing to Do with Business Judgment .................................................................................................... 7 ARGUMENT ..............................................................................................................................10 A. Yasemin’s and Zeynep’s Renewed Requests for Injunctive Relief Is Proper ....... 10 1. New Facts Are Now Available That Were Not Available at the Time of the Prior Motions, Namely, that Defendants Have Decided to Market and Sell Yasemin’s and Zeynep’s Homes ..................................................................... 10 2. Plaintiffs’ Motion Seeks to Preserve Status Quo ............................................. 12 B. Plaintiffs Have Satisfied the Standard for a Temporary Restraining Order and Preliminary Injunction .......................................................................................... 12 1. Legal Standard .................................................................................................... 12 2. The Court Has Already Held That Plaintiffs Have Established A Likelihood of Success on the Merits ................................................................... 13 3. Yasemin and Zeynep Will Suffer Irreparable Harm Without a Preliminary Injunction ............................................................................................................ 14 i 3 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 a. Irreparable Harm Will Result from Yasemin’s and Zeynep’s Loss of Their Right to Reside in Their Homes ....................................................... 14 i. Yasemin Will Suffer Irreparable Harm................................................ 15 ii. Zeynep Will Suffer Irreparable Harm .................................................. 16 4. The Balance of Equities Weighs Heavily in Favor an Injunction ...................... 14 C. The Doctrine of Judicial Estoppel Precludes Defendants from Now Taking the Position That They Are Permitted to Sell Yasemin’s and Zeynep’s Homes During The Pendency of This Case, Which Would Be Inconsistent With Their Prior Representations to the Court ......................................................................... 19 CONCLUSION ...........................................................................................................................20 ii 4 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 TABLE OF AUTHORITIES Cases Bass v WV Preserv. Partners, LLC, 209 AD3d 480 [1st Dept 2022] .............................................................................................. 14 Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 [1989] ............................................................................................................. 14 D & L Holdings v Goldman Co., 287 AD2d 65 [1st Dep’t 2001] ............................................................................................... 19 Doe v. Axelrod, 73 N.Y. 2d 748 (1988) ............................................................................................................ 12 Doe v. Dinkins, 192 AD2d 270 [1st Dept 1993] .............................................................................................. 13 Dooley v Dooley 2013 NY Slip Op 30082[U] [Sup. Ct., Suffolk Cty. 2013] .................................................... 14 Encompass Home & Auto Ins. Co. v. Makendy, 2017 N.Y. Misc. LEXIS 3818 [Sup. Ct. N.Y. Cty Oct. 3, 2017] ........................................... 10 Framapac Delicatessen v. Aetna Cas. & Sur. Co., 249 AD2d 36 [1st Dep’t 1998] ............................................................................................... 10 Franco v 172 E. Holdings LLC, 2013 N.Y. Misc. LEXIS 410 (Sup. Ct. NY Cty. Feb. 1, 2013) .............................................. 14 Herman v 36 Gramercy Park Realty Assoc., LLC, 165 AD3d 405 [1st Dep’t 2018] ............................................................................................. 19 Holmes v W. T. Grant, Inc., 71 Misc 2d 486 [Sup. Ct. Nassau Cty. 1972] ......................................................................... 14 Jones v Park Front Apts., LLC, 73 AD3d 612 [1st Dept 2010] ................................................................................................ 14 London Paint & Wallpaper Co., Inc. v Kesselman, 2015 N.Y. Misc. LEXIS 2744 [Sup. Ct. NY Cty. July 27, 2015] .......................................... 12 Luna v. Port Auth., 21 AD3d 324 (1st Dep’t 2005) ............................................................................................... 10 Maas v Cornell Univ., 253 AD2d 1 [3d Dept 1999] ................................................................................................... 19 iii 5 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 New Hampshire Ins. Co. v MF Global Fin. USA Inc., 204 AD3d 141 [1st Dep’t 2022] ............................................................................................. 19 Pac. Alliance Asia Opportunity Fund L.P. v Kwok Ho Wan, 2020 NY Slip Op 33030[U] [Sup. Ct. N.Y. Cty. 2020] ......................................................... 19 Pdl Biopharma v Wohlstadter, 2018 N.Y. Misc. LEXIS 5780 [Sup Ct, NY Cty. Feb. 20, 2018] ........................................... 15 Post v. 120 East End Avenue Corp., 62 NY2d 19 [Ct. App. 1984] .................................................................................................. 12 Ramos v City of New York, 61 AD3d 51 [1st Dept 2009] .................................................................................................. 10 Terrell v. Terrell 279 AD2d 301 [1st Dept 2001 ................................................................................................ 13 Tishman Constr. Corp. of New York v. City of New York, 280 AD2d 374 [1st Dept 2001] .............................................................................................. 10 Tompkins v Jackson, 20 Misc 3d 1108[A] [Sup Ct, NY Cty 2008] ......................................................................... 14 U.S. Reinsurance Corp. v. Humphreys, 205 AD2d 187 (1st Dept 1994) .............................................................................................. 12 Statutes CPLR 2221 ................................................................................................................................... 10 CPLR 6301.....................................................................................................................................12 CPLR 6311 ................................................................................................................................... 12 CPLR 6313 ................................................................................................................................... 12 iv 6 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 Plaintiffs, Yasemin Tekiner (“Yasemin”) and Zeynep Tekiner (“Zeynep”), respectfully submit this memorandum of law in support of their Order to Show Cause for leave to renew Yasemin’s application for a preliminary injunction with temporary restraining order to enjoin Defendants’ threatened sale of Yasemin’s home and her eviction therefrom; and Zeynep’s application for injunctive relief preventing Defendants and their agents from retaliating against her or changing the status quo of her relationship with the Defendant companies, including without limitation enjoining them from firing her as a director and officer, taking away her salary and benefits, or evicting her from her home. PRELIMINARY STATEMENT Mere days after this Court ordered the appointment of an independent financial monitor in response to Plaintiffs’ motion for a temporary receiver, Defendants advised Yasemin and Zeynep that they now seek to sell Plaintiffs’ homes and evict them. Yasemin and Zeynep respectfully request that this Court enjoin Defendants’ latest efforts to retaliate against them. Having already taken away Yasemin’s positions within the Companies and the salary that is her only income – until the Court ordered Defendants to reinstate her and pay her salary – and having coerced Zeynep into participating in Yasemin’s removal as a director and leaving Zeynep in constant fear of losing her home and salary at any time, Defendants are now planning to engage in a repugnant act of retaliation that even they previously claimed was unthinkable: taking away Yasemin’s and Zeynep’s homes. Defendants have offered the pretext that this is merely a business decision, but make no mistake: Defendants’ brazen retaliation was announced just days after the Court ordered appointment of an independent financial monitor, and before the monitor could begin his work. And Defendants’ supposed business justification is based on a Board approval that never actually 1 7 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 happened. Allowing Defendants to sell Yasemin’s and Zeynep’s homes out from under them would constitute irreparable harm to the Plaintiffs. Moreover, Defendants’ most recent threatened act of retaliation flies in the face of their numerous prior representations to the Court and Plaintiffs – upon which the Court and Plaintiffs relied – that they would not seek to remove Plaintiffs from their homes. In previously denying the portion of Yasemin’s request to enjoin Defendants from depriving her of her home, this Court expressly relied on Defendants’ representations that Yasemin would be permitted to continue to reside in her home during the pendency of this case. Similarly, in opposing Zeynep’s request for an injunction preventing Defendants from evicting Zeynep from her home, Defendants unequivocally represented to the Court and Zeynep that they would not seek to remove her from her home. That Defendants have now apparently changed their mind warrants renewal of Yasemin’s and Zeynep’s requests for injunctive relief to preserve the status quo and prevent Yasemin and Zeynep from suffering the irreparable harm of losing their homes. Accordingly, Defendants should be enjoined from marketing or selling Yasemin’s home and Zeynep’s home, and from taking any action to in any way deprive Yasemin and Zeynep of their right to reside in their respective homes, during the pendency of this case. FACTUAL BACKGROUND A. Yasemin’s Initial Request for Injunctive Relief, and Defendants’ Repeated Assurances to the Court That They Would Not Seek to Evict Yasemin From Her Home During the Pendency of this Case On January 3, 2021, Yasemin filed her Complaint commencing this action. (NYSCEF Doc. No. 2.) Contemporaneously with the filing of her Complaint, Yasemin sought a preliminary injunction with temporary restraining order to enjoin Defendants from taking retaliatory measures 2 8 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 against her, including by evicting her from her home. (NYSCEF Doc. No. 11) (the “Initial OTSC”). Yasemin has lived in her home located at 10819 Vicenza Way, Los Angeles, California 90077 (the “Yasemin Residence”), for nearly a decade. (NYSCEF Doc. No. 276, ¶23.) The Yasemin Residence was purchased by defendant Bremen House, Inc. in 2014 with proceeds from the sale of an apartment in which Yasemin lived in New York City. (Id.) Yasemin spent a year researching the Los Angeles market before arranging for the purchase of the Yasemin Residence. (Id.) Yasemin’s efforts paid off and – as Berrin admits – the Yasemin Residence has already appreciated by more than $1.5 million for the company’s benefit. (NYSCEF Doc. No. 225, ¶41.) Since 2014, Yasemin has leased the Yasemin Residence from defendant Bremen House, Inc., and has made annual rental payments to Bremen House, Inc. using a portion of her bonus compensation from the Company until recently, when Defendants eliminated Yasemin’s annual bonus compensation because she filed this lawsuit. (See Affidavit of Yasemin Tekiner, dated May 18, 2023 (“Yasemin Aff.”), at ¶5.) Yasemin has paid and continues to pay numerous out-of-pocket expenses relating to the Yasemin Residence. (Id., at ¶6.) In May 2021, then-counsel for the Defendants that “going forward, Bremen House will no longer be paying any maintenance costs associated with the California residence it is permitting Yasemin to reside in rent-free pending the conclusion of the lawsuit, including but not limited to landscaping charges or water and gas bills.” (Yasemin Aff., at Ex. A.) Since then, Yasemin has personally assumed all costs of repairs and maintenance of the Yasemin Residence. (Yasemin Aff., ¶6.) At the outset of this case, Yasemin was concerned that Defendants would try to evict her and deprive her of her rights in the Yasemin Residence as retaliation for filing this lawsuit. (NYSCEF Doc. No. 7, ¶¶26-27.) As such, in her Initial OTSC, Yasemin sought to enjoin 3 9 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 Defendants from evicting her from her home during the pendency of this action. (NYSCEF Doc. No. 11, at pp. 6, 18.) At the hearing on Yasemin’s Initial OTSC on January 25, 2021, counsel for Defendants represented: “The individual defendants here have agreed for the rest of this suit until this is either resolved or adjudicated that [Yasemin] can remain in the home.” (NYSCEF Doc. No. 97, at 42:22-24.) (emphasis added) Accordingly, counsel for Defendants assured the Court that “the home should be off the table for purposes of this discussion [of injunctive relief] today.” (Id. at 43:15-16.) As such, on January 25, 2021, the Court entered an Order denying Yasemin’s request for a preliminary injunction, but specifically noted in the Order that “Defendants’ counsel confirmed on the record that Plaintiff would not be deprived of the use of her company-owned home in California . . . during the pendency of this litigation. The Court relied upon that representation in deciding this motion.” (NYSCEF Doc. No. 87.) Throughout this action, Defendants promised that Yasemin could continue to reside in the Yasemin Residence during the pendency of this case. For example, on March 24, 2022, Defendant Berrin Tekiner reaffirmed that, “[a]s promised previously, the Companies will allow Yasemin to live in 10819 Vicenza Way throughout her lawsuit. However, in the event Defendants are successful on their counterclaims, we reserve the right to evict Yasemin from 10819 Vicenza Way, [and] sell the property . . . .” (NYSCEF Doc. No. 225, ¶44.) (emphasis added) On April 8, 2022, Defendants further acknowledged that “[o]nce again, as with [Yasemin], Defendants will also represent that, while this litigation is pending, they will (1) not evict Zeynep [from her home] . . . .” (NYSCEF Doc. No. 339, at 19.) Berrin yet again reiterated this during her October 14, 2022 deposition: When she started to sue us I already said we shouldn’t touch her house and also we shouldn’t touch her health insurance. I am a mother. I wouldn’t leave them homeless. All my life I try to keep 4 10 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 them in comfort. So, I don’t know now about what way this litigation is going, but I never thought of leaving [her] homeless. (NYSCEF Doc. No. 1480, at 185:11-19.) B. Yasemin’s Successful Motion to Renew and Her Reinstatement as a Director and Officer of the Defendant Companies As discovery continued in this case, and based upon the facts learned in Zeynep’s motion to intervene, the depth and breadth of Defendants’ self-dealing and mismanagement, and flagrant disregard of corporate formalities, came further into focus. Accordingly, on March 8, 2022, Yasemin filed a Motion to Renew her Initial OTSC (the “First Motion to Renew”), again seeking an order reinstating Yasemin to her positions as director and officer of defendants Bremen House, Inc. and German News, Inc., and restoring her salary and benefits going forward. (NYSCEF Doc. No. 198.) On April 18, 2022, after Yasemin established a likelihood of success on the merits, the potential for irreparable harm, and that the balance of the equities weighed in her favor, the Court granted Yasemin’s First Motion to Renew and reinstated her as a director and officer of the Companies on the same terms as before her wrongful retaliatory termination. (NYSCEF Doc. No. 353.) C. Zeynep’s Initial Request for Injunctive Relief, and Defendants’ Assurances to the Court that They Would Not Seek to Evict Zeynep from Her Home During the Pendency of this Case On March 22, 2022, Zeynep moved to intervene in this matter (NYSCEF Doc. No. 215.) In that motion, Zeynep included an application for an order to show cause for a preliminary injunction with temporary restraining order to enjoin Defendants from taking retaliatory measures against her, including a request that Defendants be enjoined from removing her from her home. (Id.) 5 11 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 Zeynep and her two daughters have lived in their home located at 31 White Plains Road, Bronxville, New York (the “Zeynep Residence”) for six years. (See Affidavit of Zeynep Tekiner, dated May 18, 2023 (“Zeynep Aff.”), at ¶4.) She moved in while her daughters were ages 12 and 14. (Id.) Her oldest daughter is now in college but still comes home, and her younger daughter is a junior in high school and is looking forward to her senior year. (Id.) The Zeynep Residence was purchased by defendant Bremen House, Inc. in 2017 with Company funds – presumably with proceeds from the sale of 21 Dusenberry Lane, Bronxville, NY (the “Dusenberry Property”), in which Zeynep and her daughters first lived when they came back to the United States from Turkey. Zeynep had no choice but to move into the Dusenberry Property because at the time, she had been living with her daughters in Turkey, was divorcing her husband and had literally virtually no money except for funds that Defendant Berrin was sending her each month. (Id. at ¶6.) Berrin gave Zeynep an ultimatum that if Zeynep stayed in Turkey, Berrin would stop giving her any funds – but if Zeynep and her daughters moved to New York, Berrin assured Zeynep that she would live in a Company owned house and would receive a salary – just as Gonca was receiving these same benefits from the Companies. (Id. at ¶7.) From the time Zeynep and her daughters first moved into the Zeynep Residence until recently, Zeynep has leased the Zeynep Residence from defendant Bremen House, Inc., and has made annual rental payments. (Id. at ¶10.) In or about 2021, the Company reduced Zeynep’s salary (i.e., the bonus) and Zeynep was no longer able to pay rent. Zeynep also pays numerous out-of-pocket expenses relating to the Property. (Id.) Once Zeynep decided to intervene in this action alongside her sister Yasemin, she was concerned that the Defendants would try to evict her and deprive her of her rights in the Zeynep Property as retaliation for joining this lawsuit. (NYSCEF Doc. No. 217, ¶¶11, 54.) As such, in 6 12 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 Zeynep’s Initial OTSC, Zeynep sought to enjoin the Defendants from evicting her from her home during the pendency of this action. (Id.) In their opposition to Zeynep’s Initial OTSC, counsel for the Defendants made the following representation to the Court regarding the Property: Zeynep would not suffer the “hunger of indignities” she claims without an injunction … : she would still live rent free in a multi- million dollar home, receive health insurance, and have access to her pension. … Once again, as with Plaintiff, Defendant will also represent that, while this litigation is pending, they will (1) not evict Zeynep from 31 White Plains Road; (2) pay taxes and homeowners insurance on 31 White Plains Road; and (3) continue providing health insurance for Zeynep and her dependents. (NYSCEF Doc. No. 336, at 19.) As such, on April 18, 2022, the Court issued a Decision & Order on Motion, granting Zeynep’s motion to intervene, but denying her request for preliminary injunctive relief. (NYSCEF Doc. No. 354, at 1.) Although the Court did not explicitly address Zeynep’s request for injunctive relief precluding Defendants from selling the Zeynep Residence and evicting her, the Court held that, absent a specific threat to sell her residence, Zeynep’s request for injunctive relief was speculative. (NYSCEF Doc. No. 370, Tr. 85:21-86:10.) Defendant Berrin reiterated this during her deposition, testifying that: Even – whatever happens in this lawsuit, I would always have my daughters live in a house, even if they were so mean to me. I would never leave them homeless. (NYSCEF Doc. No. 1480, at Tr. 187:21-24.) D. Defendants’ Current Threats to Imminently Market and Sell Yasemin’s and Zeynep’s Homes Out from Under Them Is Thinly-Veiled Retaliation for the Appointment of an Independent Financial Monitor and Has Nothing to Do with Business Judgment On April 14, 2023, the Court granted in part Plaintiffs’ motion for a temporary receiver and directed the appointment of an independent financial monitor. (NYSCEF Doc. No. 1581.) On April 20, 2023, Defendants advised that they intended to start marketing and sell Yasemin’s and 7 13 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 Zeynep’s residences “by the end of April,” because “the Board approved the sale of all non-income producing single-family residential properties owned by the Company.” (NYSCEF Doc. No. 1591.) While Defendants’ newly revealed intention to sell Yasemin’s and Zeynep’s residences is inconsistent with Defendants’ multiple prior representations to this Court and Plaintiffs, it is unfortunately perfectly consistent with their pattern of selling off the Company’s properties during the course of this litigation at a dizzying pace. Indeed, since Extell sale in December 2020 – which disposed of half of the Company’s portfolio of properties shortly before Yasemin commenced this case – Defendants have sold seven additional properties, all while this lawsuit has been pending. (Yasemin Aff., ¶8.)1 Defendants are carrying out their threat to liquidate everything and take and hide the proceeds. (NYSCEF Doc. No. 217, ¶28.) On April 24, 2023, Plaintiffs responded to Defendants’ letter, pointing out that, in fact, at the June 2019 meeting to which the Defendants refer, the Board had only approved the sales of two other homes – and had never approved the sale of either the Yasemin Residence or the Zeynep Residence. (See NYSCEF Doc. No. 1592; NYSCEF Doc. Nos. 594 ¶ 6, 595). Plaintiffs also reminded Defendants of their numerous representations to the contrary, and questioning the timing of their letter, which was sent merely six days after the Court directed the appointment of an independent financial monitor and before the monitor could be selected and begin his duties. (NYSCEF Doc. No. 1592.) On April 26, 2023, Defendants responded that, notwithstanding the lack of Board consent, “there is no sound business rationale for the Company to continue to own non-income-producing, single family residential properties such as” Yasemin’s and Zeynep’s 1 As if the Extell sale, the sale of seven additional properties during the last two years, and the threatened sale of Yasemin’s and Zeynep’s residences were not enough, Defendant Bremen House notified Plaintiffs on May 11, 2023 that it has retained a broker and intends, as manager of 254 W 35th St LLC, to sell the remaining crown jewel property at 254 W. 35th Street, New York, New York. (See Affirmation of Scott W. Parker, dated May 18, 2023 (“Parker Aff.”), at Ex. A.) 8 14 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 residences.2 (Yasemin Aff., at Ex. B.) Defendants’ response ignored completely their prior representations that they would not sell or evict Plaintiffs from the Residences. (Id.) Defendants also attempted to manufacture legitimacy for their decision to sell Yasemin’s and Zeynep’s homes by pointing to the prior sales of homes in which Defendants Berrin and Gonca lived, and that Berrin and Gonca now live in homes owned in their own names. (Id.) This Court previously correctly observed the flaw in Defendants’ argument, noting: “But [Berrin] and Gonca are the ones who have flow of funds from the company and [Yasemin and Zeynep] don’t.” (NYSCEF Doc. No. 1239, Tr. 31:24-25 (emphasis added).) In other words, Berrin and Gonca were able to purchase homes for themselves using money paid to them by the Companies. (Id.) Yasemin and Zeynep have no such luxury. (Id.) On May 9, 2023, the Court selected Jay Borow of Berkeley Research Group, as the independent financial monitor. (NYSCEF Doc. No. 1601.) One day later, Berrin again wrote to Yasemin and Zeynep and informed them that brokers had been retained to market and sell both Yasemin’s and Zeynep’s homes. On May 16, 2023, Plaintiffs wrote to Berrin requesting information regarding the proposed sales of the Residences and providing a number of business reasons why the sale of the Residences might not benefit the Companies. (Yasemin Aff., at Ex. C.) Plaintiffs also provided a number of alternative actions that the Companies could take to reduce expenses and increase revenue. (Id.) As of today, Defendants have not responded. (Id. at ¶11.) 2 Notably, Defendants have not expressed an intention to sell Berrin’s vacation home in East Hampton located on Marion Lane, which she only occasionally uses and which has substantially higher carrying costs than either Yasemin’s or Zeynep’s Residences. (Yasemin Aff., ¶10.) 9 15 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 ARGUMENT A. Yasemin’s and Zeynep’s Renewed Requests for Injunctive Relief Is Proper 1. New Facts Are Now Available That Were Not Available at the Time of the Prior Motions, Namely, that Defendants Have Decided to Market and Sell Yasemin’s and Zeynep’s Homes Pursuant to CPLR 2221(e), a motion for leave to renew must (1) “be based upon new facts not offered on the prior motion that would change the prior determination” and (2) “contain reasonable justification for the failure to present such facts on the prior motion.” Luna v. Port Auth., 21 AD3d 324, 325 (1st Dep’t 2005) (quotations omitted). New facts are those that were unavailable at the time of the prior motion. Id.; CPLR 2221(e)(2). Courts have “broad discretion to grant renewal.” Framapac Delicatessen v. Aetna Cas. & Sur. Co., 249 AD2d 36, 36 [1st Dep’t 1998]. “A motion for leave to renew is intended to bring to the court’s attention new or additional facts which, although in existence at the time the original motion was made, were unknown to the movant and were, therefore not brought to the court’s attention.” Tishman Constr. Corp. of New York v. City of New York, 280 AD2d 374, 376 [1st Dept 2001]. New York courts regularly grant motions to renew requests for injunctive relief where facts subsequently come to light that warrant relief different than that which was previously granted. Encompass Home & Auto Ins. Co. v. Makendy, Index No. 160580/2015, 2017 N.Y. Misc. LEXIS 3818, at *4 [Sup. Ct. N.Y. Cty Oct. 3, 2017]. “[A] motion for leave to renew is not subject to any particular time constraints.” Ramos v City of New York, 61 AD3d 51, 54 [1st Dept 2009]; see CPLR 2221(e). Yasemin and Zeynep seek leave to renew based on new facts that were unavailable at the time of their respective Initial OTSC: namely, that despite multiple, in-Court assurances to the contrary, Defendants have recently hired brokers to market and sell their homes. The Court expressly indicated that it relied on such representations in denying Yasemin’s Initial OTSC in 10 16 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 which she sought to restrain Defendants from “impairing her right to occupy her home.” (NYSCEF Doc. No. 5.) And Defendants made the same representation to the Court before the Court denied Zeynep’s Initial OTSC. (NYSCEF Doc. No. 336, at 19.) The Court based its initial denial of Yasemin’s request for injunctive relief in part on the fact that Defendants had not yet explicitly threatened to evict Yasemin from her home, noting: “And, again, generally for a TRO, . . . the one that you point out that seems to be the most immediate[], is they cut off all of her income and kick her out of her house and that maybe you can’t recover, you can’t -- that could be irreparable in the sense that the case you cited says you shouldn’t have to be destitute and that, ultimately, get a recovery. But, the specifics of that are a little vague to me because unless they have threatened to do that, it seems like a difficult exercise of equitable powers to enjoin things that may happen, but which haven’t been threatened yet.” (NYSCEF Doc. No. 36, Tr. 14:2-14.) Similarly, although not specifically addressing the threat of eviction, the Court expressed the same sentiment in denying Zeynep’s motion for injunctive relief: I think in deciding whether to grant injunctive relief, it’s important to have a more concrete context than a generalized concern based on things that happened either five years ago or even I guess a little more than a year ago. … So I think we'll have to just see what happens, but I don't think the current record gives rise to sufficient threat of irreparable harm to warrant a court order. (NYSCEF Doc. No. 370, Tr. p. 86.) Defendants, however, have now explicitly and unequivocally threatened to do so. Since the Court ordered the appointment of an independent financial monitor, Defendants revealed that they have changed their minds: they have retained brokers, and in fact they do intend to imminently market and sell the Yasemin Residence and Zeynep Residence and permanently 11 17 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 deprive Yasemin and Zeynep of their homes. (See NYSCEF Doc. No. 1591; Yasemin Aff., Ex. C.) 2. Plaintiffs’ Motion Seeks to Preserve Status Quo Plaintiffs’ instant Order to Show Cause to Renew seeks only to preserve the status quo as it was when Yasemin’s and Zeynep’s respective original injunction motions were filed – which is the very purpose of preliminary injunctive relief, and also the point of a renewal motion. See U.S. Reinsurance Corp. v. Humphreys, 205 AD2d 187, 192 (1st Dept 1994). Moreover, “[t]he threat of termination of a lease and forfeiture, standing alone, has been sufficient to permit maintenance of the status quo by injunction.” London Paint & Wallpaper Co., Inc. v Kesselman, 2015 N.Y. Misc. LEXIS 2744, at *10-*11 [Sup. Ct. NY Cty. July 27, 2015] (citing Post v. 120 East End Avenue Corp., 62 NY2d 19, 26 [Ct. App. 1984]). B. Plaintiffs Have Satisfied the Standard for a Temporary Restraining Order and Preliminary Injunction 1. Legal Standard A preliminary injunction may be granted “in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.” CPLR §§ 6301, 6311. Specifically, a preliminary injunction will be granted when the party seeking such relief demonstrates: “(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor.” Doe v. Axelrod, 73 N.Y. 2d 748, 750 (1988). A temporary restraining order likewise may be granted pending a hearing for a preliminary injunction where “it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.” CPLR §§ 6301, 6313. As 12 18 of 29 FILED: NEW YORK COUNTY CLERK 05/19/2023 12:03 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1637 RECEIVED NYSCEF: 05/19/2023 discussed below, the equities of this case and the high risk of injury to Yasmin and Zeynep resulting from Defendants’ threat to imminently and irreversibly sell their homes, warrant the issuance of a temporary restraining order followed by a preliminary injunction. 2. The Court Has Already Held That Plaintiffs Have Established A Likelihood of Success on the Merits In determining whether a “likelihood of success” on the merits exists, a court need not finally determine the merits of an action and a plaintiff need not demonstrate that success is an absolute certainty. (See Doe v. Dinkins, 192 AD2d 270, 275-76 [1st Dept 1993].) A plaintiff is only required to make a prima facie showing of the likelihood of success. (See Terrell v. Terrell, 279 AD2d 301, 303 [1st Dept 2001]; Akos Really Corp. v. Vandemark, 157AD2d 632, 634 [1st Dept 1990].) As this Court has held, a likelihood of success on the merits has been established. At the hearing on Yasemin’s First Motion to Renew, the Court found: Courts . . . get involved . . . when the process of shareholder voting and other corporate decisions are potentially undermined by conflicts of interest and self-dealing. In those situations, the presumption of regularity may be undermined. And here, based on information that I was not aware of at the time I made these initial decisions, there is now what I consider to be evidence that throws that into doubt and I think raises the likelihood of success on some of these points to a level that I was not aware of . . . . Enough evidence in my view has now bee