### 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 prejudgmentinterest is DENIED. Simplyput, CPLR 5001 provides for prejudgmentinterest to be "recoveredupon a sum awarded becauseof a breach of performanceof a contract' (CPLR 5001 [a] [emphasis added]) and that "[i]nterest shall be computed from the earliest ascertainable date the cause ofaction 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 andprejudgment interestwas awarded from the date ofthe breach - i.e., the earliest ascertainable date the cause ofaction existed. It is irrelevant under CPLR 5001 that the principal amount ofthejudgmentwas

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL Motion No. 009 1 of 7 Page 1 of7 

### [* 1]NYSCEF DOC. NO. 767 INDEX NO. 651838/2020 RECEIVED NYSCEF: 09/19/2024 ultimately reduced to approximately $60,571,987 1based on Telelfonica S.A.'s subsequent mitigation cover transaction which occurred some approximately 15 months after Millicom breached the SPA as to the award ofprejudgmentinterest between the time that the breach occurred and the time that the cover transaction took place. The statute does not say thatprejudgmentinterest is to be awarded on the sum awardedbased on the breach ofperformance ofa contract "after deducting any other future_amounts received ornet ofany 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 ofthe statute which is designed to make the non-breaching partywhole 

### (Brushton-Moira Cent. SchoolDist. vFredH 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 partyin as good a position as it would have been had the contractbeen performed."; 

### NML Capital vRepublic of Argentina, 17 NY3d 250, 266 [2011] holding thatthe purpose ofCPLR 5001 is to provide "forthe loss ofuse of money the [non-breaching party] was owed during a particularperiod oftime"; 

### see also Spodekv ParkProp. Dev. Assoc., 96 NY2d 577, 581 [2001] "CPLR 5001 (a) permits a creditor to recover prejudgmentinterest on unpaid interest and principal payments awarded from the date each paymentbecame due under the terms ofthe promissorynote to the date liability is established. This application not only comports with the plain language ofthe statute that mandates the award ofinterest to verdict in breach ofcontract actions, but also is consistent with our long-standing recognition that the purpose ofawarding interest is to make an aggrievedparty whole" [internal citations omitted]). The benefit that Millicomreceived based on Telefonica's subsequent cover

1 The parties have agreed that this is appropriate amount ofthe delta between the price and the covertransaction in certain competing proposedjudgments submitted to the Court.

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL Page 2 of7 Motion No. 009 2 of 7 

### [* 2]NYSCEF DOC. NO. 767 INDEX NO. 651838/2020 RECEIVED NYSCEF: 09/19/2024 transaction is reduction ofthe principal amount due, not elimination ofprejudgmentinterest from the earliest ascertainable date the cause ofaction existed (i.e., the time the breach occurred) on the sum awarded because of the breach of performance of the contractuntil such cover transaction took place.2
A motion for leave to reargue mustbebased on matters offact orlaw allegedly overlooked or misapprehended bythe court in determining the priormotion but cannot include any matters of fact not offered on the priormotion (CPLR 2221 [d]). A motion for leave to reargue is not intended to provide an unsuccessful partywith successive opportunities to present arguments different from those originallypresented (Setters vAIProp. andDev. (USA) Corp., 139 AD3d 492, [1st Dept 2016], Foley v Roche, 68 AD2d 558, 567-68 [1st Dept 1979]). Noris 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 correctpurported factual errors, the factual errors mustbematerial and unmistakable (Mendez v Queens Plumbing Supply, Inc., 39 AD3d 260,260 [1st Dept 2007]). A motion for leave to renew "shall bebasedupon new facts not offered on the priormotion 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 reasonablejustification 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. PahlEquip. Corp. v Kassis, 182 AD2d

2 Forthe avoidance ofdoubt (and although not the subject ofthis motion), the Court notes that from the time that the covertransaction tookplace, the Court shall award prejudgment interest only on the net amount due - i.e., the $60,571,987 representing the delta betweenthe price and the cover transaction. Bothparties have agreed

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL Page 3 of7 Motion No. 009 3 of 7 

### [* 3]NYSCEF DOC. NO. 767 INDEX NO. 651838/2020 RECEIVED NYSCEF: 09/19/2024 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 priormotion (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 ofthe prior motion but not included in the movant's prior submissions cannot serve as the basis for a renewal motion. As relevant, byDecision and Order dated February 13, 2024 (the Prior Decision; NYSCEF Doc. No. 721), the Court granted Telefonica's motion for partial summaryjudgment (and denied Millicom's competing motion for summaryjudgment) holding that there were no issues offact 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 ofdamages 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 ofTelefonica's Costa Rican subsidiary), the Court afforded Millicom a credit in such amount byreducing the principal amount then due and indicated that Telefonica could submitjudgment 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 ofaction existed (i.e., the date ofthe breach) up until the cover transaction took place.

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL Motion No. 009 4 of 7 Page 4 of7 

### [* 4]NYSCEF DOC. NO. 767 INDEX NO. 651838/2020 RECEIVED NYSCEF: 09/19/2024 Millicomnow moves for renewal to extent that the Court awarded prejudgment interest based on any legal theory other than statutoryprejudgment interestpursuant to CPLR 5001 and to reargue the Court's prejudgment interest award, arguing that this award contravenes the plain language ofCPLR 5001. The arguments fail. As discussed above, with respect to prejudgment interest, the basis for the Court's PriorDecision was CPLR 5001 - not any other legal theory. Inasmuch as this is the onlybasis upon which Millicom seeks renewal, the branch ofthe 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 recoveredupon a sum awarded because of a breach of performanceof a contract, orbecause ofan act or omission depriving or otherwise interfering with title to, orpossession or enjoyment of, property, except that in an action ofan 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. Interestshallbecomputedfrom the earliest ascertainable date the causeof action existed, except that interestupon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computedupon each item from the date itwas incurred orupon all ofthe 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. Ifajuryis discharged without specifying the date, the courtupon motion shall fix the date, except that where the date is certain and not in dispute, the date maybe fixed bythe clerk ofthe court upon affidavit. The amount ofinterest shall be computedby the clerk ofthe court, to the date the verdict was rendered or the report or decision was made, and included in the total sum awarded.

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL Motion No. 009 5 of 7 Page 5 of7 

### [* 5]NYSCEF DOC. NO. 767 (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 ofaction existed" (CPLR 5001 [b]). At that point in time, Millicom owed Telefonica the $623 million contractprice. This is the "sum awardedbecause ofa breach ofperformance ofa 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 ofthejudgmentis properly reducedby the amount ofthe mitigation. As discussed above, this is the benefit that Millicomproperly receives. The argument that they are entitled to wipe out the interest from the date ofthe breach to the point ofthe 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 ofprejudgment interest as to the sum awarded because ofthe breach from the earliest ascertainable date the cause ofaction existed- i.e., the date ofthe breach. To hold otherwise, twists logic beyond recognition. Forthe avoidance ofdoubt, it does not matterthat the parties' experts agree thatthe principal amount due Telefonica is reducedby the mitigation ofthe cover transaction. Lastly, the Court notes that the Court cited Trehan as persuasive authority as having correctly applied the principle that the loss ofthe use ofthe money is a harm for which the non-breaching partymustbe compensatedby an award ofprejudgment interest (NYSCEF Doc. No. 721 at 5, footnote 3; Trehan v Tuli, 2016 WL 6775501, at *5 [SDNY Aug. 23, 2016], report and recommendation

651838/2020 TELEFONICA S.A. vs. MILLICOM INTERNATIONAL Motion No. 009 6 of 7 Page 6 of7 

### [* 6]NYSCEF DOC. NO. 767 INDEX NO. 651838/2020 RECEIVED NYSCEF: 09/19/2024 

### adopted, 2016 WL 6778802 [SDNY Nov. 15, 2016] "Thevalue ofthe paintings is sufficientto reduce the damages the defendants mustpay, butitis 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, itis hereby ORDERED that Millicom's motion for reargument orrenewal (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 7 of 7 ANDREW BORROK, J.S.C.

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

Page 7 of 7 

### [* 7]