           09-0213-cv
           Herzfeld v. JPMorgan Chase & Co.

                                    UNITED STATES COURT OF APPEALS
                                          F OR T HE S ECOND C IRCUIT

                                                   SUMMARY ORDER

R ULINGS   BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT .    C ITATION TO SUMMARY ORDERS FILED AFTER J ANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY THIS COURT ’ S    L OCAL R ULE 32.1 AND F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A
BRIEF OR OTHER PAPER IN WHICH A   LITIGANT CITES A SUMMARY ORDER , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS , AT LEAST
ONE CITATION MUST EITHER BE TO    THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION : “( SUMMARY ORDER ).” A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE      ( SUCH   AS THE DATABASE AVAILABLE AT HTTP :// WWW . CA 2. USCOUR T S . GOV /).
IF   NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE , THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED .



                At a stated Term of the United States Court of                                          Appeals
           for the Second Circuit, held at the Daniel Patrick                                          Moynihan
           United States Courthouse, 500 Pearl Street, in the                                          City of
           New York, on the 25 th day of November, two thousand                                        and
           nine.

           Present: JOSEPH M. MCLAUGHLIN,
                    RICHARD C. WESLEY,
                                  Circuit Judges,
                    LAWRENCE E. KAHN,
                                  District Judge. *
           ________________________________________________

           ERIK HERZFELD,
                                          Plaintiff-Appellant,

                           - v. -                                                     (09-0213-cv)

           JPMORGAN CHASE BANK, N.A.,
                             Defendant-Appellee.
           __________________________________________________




                   *
                    The Honorable Lawrence E. Kahn, of the United States District Court
           for the Northern District of New York, sitting by designation.

                                                                1
     Appearing for Appellant:      JOHN T. SARTORE, Paul, Frank &
                                   Collins, Burlington, Vermont.


     Appearing for Appellee:       JAMES J. COSTER, Satterlee,
                                   Stephens, Burke & Burke LLP, New
                                   York, New York.

          Appeal from the United States District Court for the
     Southern District of New York (Cote, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Southern District of New York be AFFIRMED.

 4       Plaintiff, Erik Herzfeld, appeals from the district

 5   court’s December 15, 2008 judgment and order granting

 6   summary judgment to Defendant, JPMorgan Chase Bank, N.A.

 7   (“JPMC” or the “Bank”).     Plaintiff’s sole allegation is that

 8   JPMC fraudulently induced him to remain employed by the Bank

 9   through false representations, and thereby, to forgo a

10   position at another bank.

11       We presume the parties’ familiarity with the underlying

12   facts, the procedural history of the case, and the issues on

13   appeal.   After reviewing the district court’s grant of

14   summary judgment de novo, see Global Network Commc’ns, Inc.

15   v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009), we

16   affirm for substantially the reasons stated by the district

                                     2
 1   court.   We note for purposes of clarity that the district

 2   court properly applied the standards for granting summary

 3   judgment when it stated that “factual allegations that might

 4   otherwise defeat a motion for summary judgment will not be

 5   permitted to do so when they are made for the first time in

 6   the plaintiff’s affidavit opposing summary judgment and that

 7   affidavit contradicts [his] own prior deposition testimony.”

 8   Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).

 9       The parties assume that New York law governs this

10   action, and “implied consent . . . is sufficient to

11   establish choice of law.”   Krumme v. WestPoint Stevens Inc.,

12   238 F.3d 133, 138 (2d Cir. 2000) (internal quotation marks

13   omitted).   Under New York law, a plaintiff alleging fraud

14   must show five elements by clear and convincing evidence:

15   “(1) a material misrepresentation or omission of fact (2)

16   made by defendant with knowledge of its falsity (3) and

17   intent to defraud; (4) reasonable reliance on the part of

18   plaintiff; and (5) resulting damage to the plaintiff.”

19   Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir.

20   2006); see also Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d

21   330, 348-50 (1999).


                                   3
 1       As the New York Court of Appeals has cautioned, “[t]he

 2   elements of fraud are narrowly defined,” and “[n]ot every

 3   misrepresentation or omission rises to the level of fraud.”

 4   Gaidon, 94 N.Y.2d at 349-50; see also Eternity Global Master

 5   Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 187 (2d

 6   Cir. 2004).   A fraud claim must be based on the

 7   “representation of a material existing fact.”      N.Y. Univ. v.

 8   Continental Ins. Co., 87 N.Y.2d 308, 318 (1995).      Further, a

 9   party has a duty to disclose information if it has made a

10   “partial or ambiguous statement that requires additional

11   disclosure to avoid misleading the other party” only when

12   that party is aware that the other party is “operating under

13   a mistaken perception of a material fact.”   Remington Rand

14   Corp. v. Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1484

15   (2d Cir. 1995).

16       The district court properly concluded that the alleged

17   misrepresentations on which Plaintiff’s claim of fraudulent

18   inducement is based were insufficient as a matter of law to

19   defeat JPMC’s motion for summary judgment.   See Herzfeld v.

20   JPMorgan Chase Bank, N.A., No. 07 Civ. 9439 (DLC), 2008 WL

21   5210992, at *2-5 (S.D.N.Y. Dec. 15, 2008).   Herzfeld “failed


                                   4
 1   to make a sufficient showing on . . . essential element[s]

 2   of [his] case with respect to which [he] has the burden of

 3   proof.”   Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

 4       The Court has reviewed Plaintiff’s remaining arguments

 5   and finds them to be without merit.   Accordingly, the

 6   judgment of the district court is hereby AFFIRMED.

 7

 8                               For the Court
 9                               Catherine O’Hagan Wolfe, Clerk
10
11                               By: ______________________
12




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