Cite as: Finkelstein Newman Ferrara LLP v. Avemm Corp., 570319/12, NYLJ 1202586276755, at *1 (App. Tm., 1st, Decided August 24, 2012)

Before: Shulman, J.P., Hunter, Jr., Torres, JJ.

Decided: August 24, 2012




Plaintiff appeals from a judgment of the Civil Court of the City of New York, New York County (Ann E. O'Shea, J.), entered on or about January 20, 2012, after a nonjury trial, in favor of defendants dismissing the complaint.


Judgment (Ann E. O'Shea, J.), entered on or about January 20, 2012, reversed, and new trial ordered, with $30 costs to abide the event.

At the trial of this action for unpaid legal fees, plaintiff's managing partner testified that plaintiff's electronic billing records — which identified the attorney or paralegal who rendered services to defendants, the tasks performed, and the time spent on each task — were created




contemporaneously with the services performed, in the normal course of plaintiff's business. Although these records indicated the value of the legal services rendered to defendants, the trial court admitted the records into evidence only for the limited "purpose of showing that the bills were generated…[but not for] "the truth of what they state." The complaint was subsequently dismissed because, in the court's view, plaintiff "produced no admissible evidence to establish the amounts defendant allegedly owes." Plaintiff now appeals, and we reverse and order a new trial. Plaintiff's managing partner's testimony was sufficient to lay a foundation for the admission of the billing records pursuant to the business records exception to the hearsay rule (see CPLR 4518[a]; Xanboo, Inc. v. Ring, 40 AD3d 1081, 1082 [2007]; Federal Express Corp. v. Federal Jeans, Inc., 14 AD3d 424 [2005]). This evidence was sufficient to support an award in plaintiff's favor "without the necessity of calling multiple witnesses who would have merely offered cumulative testimony at best" (Xanboo at 1082; see 1199 Hous. Corp. v. Jimco Restoration Corp., 77 AD3d 502 [2010]). Since the billing records, if admitted into evidence for the




truth of the matters asserted therein, likely would have had a substantial influence upon the result of the trial (see Ceravole v. Giglio, 152 AD2d 648, 649-650 [1989]), we direct a new trial on all issues.