Kytel International Group, Inc. v. Total-Tel Carrier Services, Inc.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered February 20, 2007, which, to the extent appealed from, granted defendants’ motion to dismiss the amended complaint as barred by the statute of limitations, affirmed, with costs. Appeal by defendants from order, same court and Justice, entered April 13, 2006, to the extent it granted plaintiff leave to amend the complaint, dismissed as academic, without costs. Construing the amended complaint liberally and giving it every favorable inference, that pleading still does not present factual allegations that would estop defendants from asserting the two-year statute of limitations (47 USC § 415 [a]) as a defense. Those allegations state simply that defendants, during the two-year period following plaintiffs discovery that one of its 449 customers was rerouting calls through plaintiffs network in order to achieve a more favorable rate, denied responsibility. They do not assert any affirmative steps by defendants to conceal their own responsibility for the rerouting in order to prevent plaintiff from bringing a timely action (see Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]). Moreover, the allegations fail to establish that plaintiff acted with the requisite due diligence either in ascertaining who was responsible for the rerouting or in bringing the action once it purportedly discovered defendants’ alleged responsibility (Pahlad v Brustman, 33 AD3d 518, 519-520 [2006], affd 8 NY3d 901 [2007]). Plaintiffs backbilling of defendants in December 2002 did not commence a new limitations period. The time of the wrong from which accrual is measured was, at the latest, when plaintiff learned that calls were being rerouted (see generally MCI Telecom. Corp. v Teleconcepts, Inc., 71 F3d 1086 [3d Cir 1995], cert denied 519 US 815 [1996]). Plaintiff offers no justification as to why the six-year statute of limitations for fraud should apply when it otherwise concedes that the case is governed by the two-year federal statute, which applies to “All actions at law by carriers for recovery of their lawful charges.” (47 USC § 415 [a].) Concur—Lippman, P.J., Tom and Gonzalez, JJ.