INSURANCE COMPANY OF NORTH AM. v. GOTTLIEB

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 A.D.2d 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.