People v. Sprint Nextel Corp.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 1, 2013, which denied defendants’ motion to dismiss the complaint in its entirety, unanimously affirmed, without costs.

The court properly denied the motion to dismiss the complaint in its entirety. Plaintiffs’ complaint adequately alleges that defendants violated New York’s False Claims Act (State Finance Law § 189 [1] [g]), Executive Law § 63 (12) and article 28 of the Tax Law by knowingly making false statements material to an obligation to pay sales tax pursuant to Tax Law § 1105 (b) (2). Contrary to defendants’ interpretation, the Tax Law provision is not preempted by the Federal Mobile Telecommunications Sourcing Act (4 USC § 116 et seq.).

The court also properly rejected defendants’ argument that the New York False Claims Act with respect to statements made under the Tax Law should not be given its stated retroactive effect. Defendants fail to show that the Act’s sanction of civil penalties, including treble damages, is so punitive in nature and effect as to have its retroactive effect barred by the Ex Post Facto Clause (US Const, art I, § 10). Concur — Mazzarelli, J.P, Acosta, Renwick, Freedman and Manzanet-Daniels, JJ.