Insurance Co. of North America v. Gottlieb

— 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 *471recommendation 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.