Insurance Co. of North America v. Gottlieb

Appellate Division of the Supreme Court of New York

Insurance Co. of North America v. Gottlieb

186 A.D.2d 470, 588 N.Y.S.2d 571, 1992 N.Y. App. Div. LEXIS 12173

Appellate Division of the Supreme Court of the State of New York·Decided October 22, 1992·Published·Cited by 4 cases

Opinion

— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered December 27, 1991, which, in denying plaintiffs motion to reject the report of the Special Referee, failed to rule on the Special Referee’s [471] recommendation that plaintiff’s claim for attorneys’ fees be denied altogether or, in the alternative, allowed in the amount of $3000, and found the prime rate of interest applicable to plaintiff’s judgment to be 9%, unanimously modified, on the law, to the extent of denying attorneys’ fees, and otherwise affirmed, without costs.

The Special Referee correctly determined that the records of the prime rate of interest charged by the obligee of the promissory note were not admissible under the business records exception to the hearsay rule (CPLR 4518 [a]), since the testimony of plaintiff’s agent, who merely obtained the records from another entity that actually generated them, was an insufficient foundation for their introduction into evidence (see, Standard Textile Co. v National Equip. Rental, 80 AD2d 911).

In light of defendant’s tender of payment and other relevant factors, we find that counsel fees should be denied and, for purposes of clarification, we modify to strike the alternative finding of the Referee. Concur—Carro, J. P., Milonas, Ellerin and Asch, JJ.

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— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered December 27, 1991, which, in denying plaintiffs motion to reject the report of the Special Referee, failed to rule on the Special Referee’s [471] recommendation that plaintiff’s claim for attorneys’ fees be denied altogether or, in the alternative, allowed in the amount of $3000, and found the prime rate of interest applicable to plaintiff’s judgment to be 9%, unanimously modified, on the law, to the extent of denying attorneys’ fees, and otherwise affirmed, without costs.

The Special Referee correctly determined that the records of the prime rate of interest charged by the obligee of the promissory note were not admissible under the business records exception to the hearsay rule (CPLR 4518 [a]), since the testimony of plaintiff’s agent, who merely obtained the records from another entity that actually generated them, was an insufficient foundation for their introduction into evidence (see, Standard Textile Co. v National Equip. Rental, 80 AD2d 911).

In light of defendant’s tender of payment and other relevant factors, we find that counsel fees should be denied and, for purposes of clarification, we modify to strike the alternative finding of the Referee. Concur—Carro, J. P., Milonas, Ellerin and Asch, JJ.

Insurance Co. of North America v. Gottlieb, 186 A.D.2d 470, 588 N.Y.S.2d 571, 1992 N.Y. App. Div. LEXIS 12173 (N.Y. Ct. App. 1992).

Pincite

186 A.D.2d 470 (Insurance Co. of North America v. Gottlieb) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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