Telefonica S.A. v Millicom Intl. Cellular S.A.

2024 NY Slip Op 33315(U)

September 19, 2024

Supreme Court, New York County

Docket Number: Index No. 651838/2020

Judge: Andrew Borrok

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 767 

INDEX NO. 651838/2020 

RECEIVED NYSCEF: 09/19/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 

-----------------------------------------------------------------------------------X 

TELEFONICA S.A., 

Plaintiff, 

- V -

MILLICOM INTERNATIONAL CELLULARS.A., MILLICOM 

SPAIN S.L. 

Defendant. 

-----------------------------------------------------------------------------------X 

HON. ANDREW BORROK: 

INDEX NO. 651838/2020 

MOTION DATE 03/27/2024 

MOTION SEQ. NO. 009 

DECISION+ ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 009) 733, 734, 735, 736, 

737,738,739,740,741,744 

were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER 

Upon the foregoing documents, Millicom International Cellular S.A. and Millicom Spain S.L. 

(collectively, Millicom)'s motion (Mtn. Seq. No. 009) to reargue, renew, and modify the Court's 

Prior Decision (hereinafter defined) with respect to prejudgment interest is DENIED. 

Simply put, CPLR 5001 provides for prejudgment interest to be "recovered upon a sum awarded 

because of a breach of performance of a contract' (CPLR 5001 [a] [ emphasis added]) and that 

"[i]nterest shall be computed from the earliest ascertainable date the cause of action existed" 

(CPLR 5001[b]). 

The sum amount awarded in the Prior Decision [hereinafter defined] because of a breach of 

performance of the SPA [hereinafter defined] was $623 million and prejudgment interest was 

awarded from the date of the breach - i.e., the earliest ascertainable date the cause of action 

existed. It is irrelevant under CPLR 5001 that the principal amount of the judgment was 

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ultimately reduced to approximately $60,571,9871 based on Telelfonica S.A.'s subsequent 

mitigation cover transaction which occurred some approximately 15 months after Millicom 

breached the SP A as to the award of prejudgment interest between the time that the breach 

occurred and the time that the cover transaction took place. 

The statute does not say that prejudgment interest is to be awarded on the sum awarded based on 

the breach of performance of a contract "after deducting any other future_amounts received or net 

of any future mitigation amounts received" by the non-breaching party. It does not say that or 

anything like that. This in fact would frustrate the purpose of the statute which is designed to 

make the non-breaching party whole (Brushton-Moira Cent. School Dist. v Fred H Thomas 

Assoc., P.C., 91 NY2d 256,261 [1998] "Damages are intended to return the parties to the point 

at which the breach arose and to place the nonbreaching party in as good a position as it would 

have been had the contract been performed."; NML Capital v Republic of Argentina, 17 NY3d 

250, 266 [2011] holding that the purpose of CPLR 5001 is to provide "for the loss of use of 

money the [non-breaching party] was owed during a particular period of time"; see also Spodek v 

Park Prop. Dev. Assoc., 96 NY2d 577, 581 [2001] "CPLR 5001 (a) permits a creditor to recover 

prejudgment interest on unpaid interest and principal payments awarded from the date each 

payment became due under the terms of the promissory note to the date liability is established. 

This application not only comports with the plain language of the statute that mandates the award 

of interest to verdict in breach of contract actions, but also is consistent with our long-standing 

recognition that the purpose of awarding interest is to make an aggrieved party whole" [internal 

citations omitted]). The benefit that Millicom received based on Telefonica's subsequent cover 

1 The parties have agreed that this is appropriate amount of the delta between the price and the cover transaction in 

certain competing proposed judgments submitted to the Court. 

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transaction is reduction of the principal amount due, not elimination of prejudgment interest from 

the earliest ascertainable date the cause of action existed (i.e., the time the breach occurred) on 

the sum awarded because of the breach of performance of the contract until such cover 

transaction took place. 2 

A motion for leave to reargue must be based on matters of fact or law allegedly overlooked or 

misapprehended by the court in determining the prior motion but cannot include any matters of 

fact not offered on the prior motion (CPLR 2221 [ d]). A motion for leave to reargue is not 

intended to provide an unsuccessful party with successive opportunities to present arguments 

different from those originally presented (Setters v AI Prop. and Dev. (USA) Corp., 139 AD3d 

492, [1st Dept 2016], Foley v Roche, 68 AD2d 558, 567-68 [1st Dept 1979]). Nor is a motion to 

reargue intended "to serve as a vehicle to permit the unsuccessful party to argue once again the 

very questions previously decided" (Foley, 68 AD2d at 567). Where a motion to reargue is 

addressed to correct purported factual errors, the factual errors must be material and 

unmistakable (Mendez v Queens Plumbing Supply, Inc., 39 AD3d 260,260 [1st Dept 2007]). 

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that 

would change the prior determination or shall demonstrate that there has been a change in the 

law that would change the prior determination; and shall contain reasonable justification for the 

failure to present such facts on the prior motion" (CPLR § 2221[e]). Although motions to renew 

are addressed to the court's sound discretion (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 

2 For the avoidance of doubt (and although not the subject of this motion), the Court notes that from the time that the 

cover transaction took place, the Court shall award prejudgment interest only on the net amount due - i.e., the 

$60,571,987 representing the delta between the price and the cover transaction. Both parties have agreed 

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22, 27 [1st Dept 1992]), such motions should be "granted sparingly" and are not a second chance 

for parties who have not exercised due diligence submitting facts in the prior motion (Beiny v 

Wynyard (In re Beiny), 132 AD2d 190, 209-210 [1st Dept 1987]). Failure to include facts 

known to the movant at the time of the prior motion but not included in the movant' s prior 

submissions cannot serve as the basis for a renewal motion. 

As relevant, by Decision and Order dated February 13, 2024 (the Prior Decision; NYSCEF Doc. 

No. 721), the Court granted Telefonica's motion for partial summary judgment (and denied 

Millicom's competing motion for summary judgment) holding that there were no issues of fact 

that Millicom breached the Share Purchase Agreement (the SPA; NYSCEF Doc. No. 356) when 

it failed to close in May, 2020, and awarded the sum of $623 million of damages caused by 

Millicom's breach. Because Telefonica had some 15 months later entered into a cover 

transaction for $533 million (and in the meantime received a substantial dividend as a result of 

its continued ownership of Telefonica's Costa Rican subsidiary), the Court afforded Millicom a 

credit in such amount by reducing the principal amount then due and indicated that Telefonica 

could submit judgment on notice. 

As relevant, with respect to prejudgment interest from the time period from the breach up 

until the cover transaction, the Court applied CPLR 5001 and held that Telefonica was entitled 

to prejudgment interest "on the sum awarded because of the breach" of $623 million and that 

Telefonica was entitled to prejudgment interest running from the earliest possible date that the 

cause of action existed (i.e., the date of the breach) up until the cover transaction took place. 

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Millicom now moves for renewal to extent that the Court awarded prejudgment interest based on 

any legal theory other than statutory prejudgment interest pursuant to CPLR 5001 and to reargue 

the Court's prejudgment interest award, arguing that this award contravenes the plain language 

of CPLR 5001. The arguments fail. 

As discussed above, with respect to prejudgment interest, the basis for the Court's Prior Decision 

was CPLR 5001 - not any other legal theory. Inasmuch as this is the only basis upon which 

Millicom seeks renewal, the branch of the motion seeking renewal is denied. 

Reargument is also not appropriate because Millicom fails to show that the Court overlooked or 

misapplied CPLR 5001. 

As discussed above, CPLR 5001 provides in relevant part: 

(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded 

because of a breach of performance of a contract, or because of an act or omission 

depriving or otherwise interfering with title to, or possession or enjoyment of, property, 

except that in an action of an equitable nature, interest and the rate and date from which it 

shall be computed shall be in the court's discretion. 

(b) Date from which computed. Interest shall be computedfrom the earliest 

ascertainable date the cause of action existed, except that interest upon damages 

incurred thereafter shall be computed from the date incurred. Where such damages were 

incurred at various times, interest shall be computed upon each item from the date it was 

incurred or upon all of the damages from a single reasonable intermediate date. 

( c) Specifying date; computing interest. The date from which interest is to be computed 

shall be specified in the verdict, report or decision. If a jury is discharged without 

specifying the date, the court upon motion shall fix the date, except that where the date is 

certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. 

The amount of interest shall be computed by the clerk of the court, to the date the verdict 

was rendered or the report or decision was made, and included in the total sum awarded. 

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(CPLR 5001 [emphasis added]). 

INDEX NO. 651838/2020 

RECEIVED NYSCEF: 09/19/2024 

The breach occurred when Millicom improperly refused to close. This is the "earliest 

ascertainable date the cause of action existed" ( CPLR 5001 [b ]). At that point in time, Millicom 

owed Telefonica the $623 million contract price. This is the "sum awarded because of a breach 

of performance of a contract" (CPLR 5001[a]). 

Subsequently, some 15 months later, Telefonica mitigated its damages by entering into a 

replacement transaction for approximately $61 million less. The amount of the judgment is 

properly reduced by the amount of the mitigation. As discussed above, this is the benefit that 

Millicom properly receives. The argument that they are entitled to wipe out the interest from the 

date of the breach to the point of the cover transaction is both contrary to the statute's express 

language and its purpose and would afford Millicom a windfall. Making Telefonica whole 

requires an award of prejudgment interest as to the sum awarded because of the breach from the 

earliest ascertainable date the cause of action existed- i.e., the date of the breach. To hold 

otherwise, twists logic beyond recognition. 

For the avoidance of doubt, it does not matter that the parties' experts agree that the principal 

amount due Telefonica is reduced by the mitigation of the cover transaction. Lastly, the Court 

notes that the Court cited Trehan as persuasive authority as having correctly applied the principle 

that the loss of the use of the money is a harm for which the non-breaching party must be 

compensated by an award of prejudgment interest (NYSCEF Doc. No. 721 at 5, footnote 3; 

Trehan v Tuli, 2016 WL 6775501, at *5 [SDNY Aug. 23, 2016], report and recommendation 

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adopted, 2016 WL 6778802 [SDNY Nov. 15, 2016] "The value of the paintings is sufficient to 

reduce the damages the defendants must pay, but it is not sufficient to compensate Trehan for his 

inability to use the funds that the defendants should have returned to him."). 

The Court has considered the parties' remaining arguments and found them unavailing. 

Accordingly, it is hereby 

ORDERED that Millicom's motion for reargument or renewal (Mtn. Seq. No. 009) is denied. 

9/19/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL 

Motion No. 009 

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ANDREW BORROK, J.S.C. 

~ NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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