Pencom Systems, Inc. v. Shapiro

Mar 11, 1997
Versions:237 A.D.2d 144
658 N.Y.S.2d 258
1997 N.Y. App. Div. LEXIS 2369

Judgment, Supreme Court, New York County (Louise Gruner Gans, J.), entered May 8, 1996, after a nonjury trial, awarding plaintiff the principal sum of $36,400, unanimously affirmed, without costs.

Evidence in the form of notes contained in plaintiff’s database records was properly admitted pursuant to CPLR 4518 (a) upon the retrial of this action by a placement and recruitment firm to recover damages against one of its former employee/recruiters for breach of a non-competition clause in the parties’ employment agreement (193 AD2d 561). Plaintiff’s recruiters were under a business duty to record contemporaneously statements that were made and events that took place in the course of their contacts with job applicants, and they regularly relied upon such information in matching applicants with possible employers. In addition, the desire of the applicant to secure a better position, the recruiter’s reliance on the information provided, and the applicant’s awareness of that reliance created an equivalent business duty on the part of the applicant to accurately respond to the recruiter’s inquiries regarding his or her reasons for changing jobs, job and salary requirements, and interest in the recruiter’s offers of placement. These contemporaneous business duties gave the records in question sufficient indicia of reliability to qualify as business records (see, People v Kennedy, 68 NY2d 569, 579-580; compare, Matter of Leon RR, 48 NY2d 117, 122-123, with Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727). The lack of personal knowledge on the part of the person entering the information into the database goes to its weight, not admissibility (CPLR 4518 [a]). Moreover, the stipulation for the admission of such records, entered into by defendant, at the prior trial, continued to be binding upon defendant at the retrial.

We have considered defendant’s other arguments and find them to be without merit. Concur—Ellerin, J. P., Wallach, Williams and Mazzarelli, JJ.