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ELBERG v. CRABAPPLE CORP.

Index No. 653373/16. Appeal No. 15123. Case No. 2019-517.

201 A.D.3d 546 (2022)

157 N.Y.S.3d 383

2022 NY Slip Op 00353

Ruben Elberg, Individually and Derivatively on Behalf of Royal CP Hotel Holdings LP and Royal HI Hotel Holdings LP, Appellant, v. Crabapple Corp. et al., Defendants, and Tamara Pewzner et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 20, 2022.

Attorney(s) appearing for the Case

Levi Huebner & Associates, PC, Brooklyn ( Levi Huebner of counsel), for appellant.

Johnson Liebman, LLP, New York ( Charles D. Liebman of counsel), for Tamara Pewzner, respondent.

Concur—Kapnick, J.P., Singh, Moulton, Shulman, Higgitt, JJ.

The issue decided by the motion court—namely, plaintiff's fitness to co-manage the LLC and LP defendants—was squarely presented in a prior action (see Crabapple Corp. v Elberg, 153 A.D.3d 434 [1st Dept 2017]), which was voluntarily discontinued with prejudice. The stipulation of discontinuance did not preserve Pewzner's right to raise this issue. Nor was the issue raised in this case as here Elberg simply seeks a declaration...

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