Tico, Inc. v. Borrok

Although the court properly determined that plaintiffs lacked standing on the basis that they did not make a formal demand on all of the general partners and failed to demonstrate that such a demand would have been futile, dismissal of the complaint with prejudice was improper. A dismissal premised on lack of standing is not a dismissal on the merits for res judicata purposes (see Aleo Gravure, Inc. v Knapp Found., 64 NY2d 458, 465 [1985]; Pullman Group v Prudential Ins. Co. of Am., 297 AD2d 578 [2002], lv dismissed 99 NY2d 610 [2003]). If given effect, however, the provision of the judgment…