Opinion
15123 Index No. 653373/16 Case No. 2019–517
01-20-2022
Ruben ELBERG, individually and derivatively on behalf of Royal CP Hotel Holdings LP and Royal HI Hotel Holdings LP, Plaintiff–Appellant, v. CRABAPPLE CORP., Defendant, Tamara Pewzner, etc., Defendant–Respondent, Royal One Real Estate, LLC, et al., Nominal Defendants–Respondents, Zhu Qing et al., Nominal Defendants.
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.
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.
Kapnick, J.P., Singh, Moulton, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 5, 2018, which granted defendant Tamara Pewzner's motion to remove plaintiff as co-manager of defendants Royal One Real Estate, LLC, Royal Real Estate Management LLC, Royal LIC Real Estate Management LLC, and Royal Hotel & Resorts, LLC, and as co-manager of the general partners of defendants Royal CP Hotel Holdings LP and Royal HI Hotel Holdings LP, unanimously reversed, on the law, without costs, and the motion denied.
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, 60 N.Y.S.3d 124 [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 that certain amended partnership agreements are valid.
In view of the foregoing, we do not reach plaintiff's remaining arguments.