
    Erik HERZFELD, Plaintiff-Appellant, v. JPMORGAN CHASE BANK, N.A., Defendant-Appellee.
    No. 09-0213-cv.
    United States Court of Appeals, Second Circuit.
    Nov. 25, 2009.
    John T. Sartore, Paul, Frank & Collins, Burlington, Vermont, for Appellant.
    James J. Coster, Satterlee, Stephens, Burke & Burke LLP, New York, New York, for Appellee.
    Present: JOSEPH M. McLAUGHLIN, RICHARD C. WESLEY, Circuit Judges, LAWRENCE E. KAHN, District Judge.
    
    
      
       The Honorable Lawrence E. Kahn, of the United States District Court for the Northern District of New York, sitting by designation.
    
   SUMMARY ORDER

Plaintiff, Erik Herzfeld, appeals from the district court’s December 15, 2008 judgment and order granting summary judgment to Defendant, JPMorgan Chase Bank, N.A. (“JPMC” or the “Bank”). Plaintiffs sole allegation is that JPMC fraudulently induced him to remain employed by the Bank through false representations, and thereby, to forgo a position at another bank.

We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. After reviewing the district court’s grant of summary judgment de novo, see Global Network Commc’ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir.2009), we affirm for substantially the reasons stated by the district court. We note for purposes of clarity that the district court properly applied the standards for granting summary judgment when it stated that “factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition testimony.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001).

The parties assume that New York law governs this action, and “implied consent ... is sufficient to establish choice of law.” Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir.2000) (internal quotation marks omitted). Under New York law, a plaintiff alleging fraud must show five elements by clear and convincing evidence: “(1) a material misrepresentation or omission of fact (2) made by defendant with knowledge of its falsity (3) and intent to defraud; (4) reasonable reliance on the part of plaintiff; and (5) resulting damage to the plaintiff.” Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir.2006); see also Guidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 348-50, 704 N.Y.S.2d 177, 725 N.E.2d 598 (1999).

As the New York Court of Appeals has cautioned, “[t]he elements of fraud are narrowly defined,” and “[n]ot every misrepresentation or omission rises to the level of fraud.” Guidon, 94 N.Y.2d at 349-50, 704 N.Y.S.2d 177, 725 N.E.2d 598; see also Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 187 (2d Cir.2004). A fraud claim must be based on the “representation of a material existing fact.” N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995). Further, a party has a duty to disclose information if it has made a “partial or ambiguous statement that requires additional disclosure to avoid misleading the other party” only when that party is aware that the other party is “operating under a mistaken perception of a material fact.” Remington Rand Corp. v. Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1484 (2d Cir.1995).

The district court properly concluded that the alleged misrepresentations on which Plaintiffs claim of fraudulent inducement is based were insufficient as a matter of law to defeat JPMC’s motion for summary judgment. See Herzfeld v. JPMorgan Chase Bank, N.A., No. 07 Civ. 9439(DLC), 2008 WL 5210992, at *2-5 (S.D.N.Y. Dec. 15, 2008). Herzfeld “failed to make a sufficient showing on ... essential elements] of [his] case with respect to which [he] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.  