Whale Telecom Ltd. v Qualcomm Inc.

Whale Telecom Ltd. v Qualcomm Inc. 2007 NY Slip Op 05649 [41 AD3d 348] June 28, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Whale Telecom Limited, Appellant,
v
Qualcomm Incorporated et al., Respondents.

—[*1] Kennedy Johnson & Gallagher, New York (Peter J. Gallagher of counsel), for appellant.

DLA Piper US LLP, New York (David E. Nachman of counsel), for Qualcomm Incorporated, respondent.

Heller Ehrman LLP, New York (Richard Cashman of counsel), for Anthony N. Georgiou, respondent.

Golenbock Eiseman Assor Bell & Peskoe LLP, New York (David J. Eiseman of counsel), for Alexander Molozanov, respondent.

Judgments, Supreme Court, New York County (Herman Cahn, J.), entered March 24, 2006, March 27, 2006 and April 6, 2006, dismissing the complaint as untimely, unanimously affirmed, with costs.

The motion court correctly applied the three-year Russian limitations period pursuant to the borrowing statute (CPLR 202), since the economic impact of the alleged tortious conduct was in Russia (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528-529 [1999]). There was an ample showing that the business of the parties and plaintiff's efforts all took place in Russia and the former Soviet republics. The court providently exercised its discretion in also considering defendants' expert affidavit in reply, which was directly responsive to plaintiff's opposition argument (see Tsadilas v Providian Natl. Bank, 13 AD3d 190, 192 [2004], lv denied 5 NY3d 702 [2005]). Based on the allegations of the complaint and the clear documentary evidence, the court properly concluded that plaintiff knew or had reason to know of defendants' allegedly wrongful conduct more than three years before commencing the action. Contrary to plaintiff's contention, there was no basis alleged for precluding assertion of the limitations defense, since plaintiff failed to set forth any specific conduct that would have prevented it from bringing this action in timely fashion (see Zumpano v Quinn, 6 NY3d 666, 674-675 [2006]; Melnitzky v Hollander, 16 AD3d 192 [2005], lv denied 5 NY3d 710 [2005]). The alleged fraudulent representation asserted as a basis for equitable estoppel is insufficient for that purpose, since it is part and parcel of the alleged underlying fraud (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 491 [2007]; Zumpano, 6 NY3d at 675; Duberstein v National Med. Health Card Sys., [*2]Inc., 37 AD3d 209 [2007]).

Although it opined on the other grounds urged for dismissal, the motion court properly recognized that its dismissal on timeliness grounds rendered those alternative grounds academic. It is unnecessary to address the court's dicta. Concur—Tom, J.P., Andrias, Sweeny, McGuire and Kavanagh, JJ.