under N.Y.C.P.L.R. § 302(a)(1), and Wassel has not controverted
this showing. Moreover, whereas section 1391(a)(2) provides for
venue in a district where "a substantial part of the events . .
. giving rise to the claim occurred" (emphasis added), Wassel
only contends that "[t]he majority of the events . . . took
place in Maryland." Defendant's Motion, at 7 (emphasis added).
This assertion does not undermine Generale's showing that the
partnership and its sponsors are located in New York, and that
a substantial part of the events resulting in its purchase of
the Note occurred here. Because the balance of factors
militates towards keeping the case in the Southern District of
New York, and because venue is proper here, the section 1404(a)
motion is denied.
B. Generale Summary Judgment Motion
1. Summary Judgment Standard
The Court next turns to Generale's summary judgment motion.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." "Summary
judgment is appropriate if, `after drawing all reasonable
inferences in favor of the party against whom summary judgment
is sought, no reasonable trier of fact could find in favor of
the non-moving party.'" United States v. All Right, Title &
Interest in Real Property, etc., 901 F.2d 288, 290 (2d Cir.
1990) (quoting Murray v. National Broadcasting Co.,
844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391,
102 L.Ed.2d 380 (1988)). Summary judgment may be granted
"against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 2552, 91 L.Ed.2d 265 (1986).
The substantive law governing the case identifies the
material facts, and "[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986); Herbert Constr. Co. v. Continental Ins.
Co., 931 F.2d 989, 993 (2d Cir. 1991). "[T]he judge's function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there does indeed exist a
genuine issue for trial." Anderson, supra, 477 U.S. at 249, 106
S.Ct. at 2510; see also R. C. Bigelow, Inc. v. Unilever N.V.,
867 F.2d 102, 107 (2d Cir.), cert. denied, 493 U.S. 815,
110 S.Ct. 64, 107 L.Ed.2d 31 (1989). The moving party "always
bears the initial responsibility of informing the district
court of the basis for its motion" and identifying which
materials it believes "demonstrate the absence of a genuine
issue of material fact." Celotex, supra, 477 U.S. at 323, 106
S.Ct. at 2553. "[T]he burden on the moving party may be
discharged by `showing' — that is, pointing out to the
district court — that there is an absence of evidence to
support the nonmoving party's case." Celotex, supra, 477 U.S.
at 325, 106 S.Ct. at 2554; see Binder v. Long Island Lighting
Co., 933 F.2d 187, 191 (2d Cir. 1991).
Once a motion for summary judgment is properly made, the
burden shifts to the nonmoving party, which "`must set forth
specific facts showing that there is a genuine issue for
trial.'" Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511
(quoting Fed.R.Civ.P. 56(e)). "Conclusory allegations will not
suffice to create a genuine issue. There must be more than a
`scintilla of evidence,' and more than `some metaphysical doubt
as to the material facts.'" Delaware & H. Ry. v. Consolidated
Rail Co., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson,
supra, 477 U.S. at 252, 106 S.Ct. at 2512, and Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 1355, 89 L.Ed.2d 538 (1986)), cert. denied, ___ U.S.
___, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991). "The non-movant
cannot `escape summary judgment merely by vaguely asserting the
existence of some unspecified disputed material
facts,' or defeat the motion through `mere speculation or
conjecture.'" Western World Ins. Co. v. Stack Oil, Inc.,
922 F.2d 118, 121 (2d Cir. 1990) (quoting Borthwick v. First
Georgetown Sec., Inc., 892 F.2d 178, 181 (2d Cir. 1989) and
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986),
cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762
2. Validity of Estoppel Letter
Generale Bank moves for summary judgment based on Wassel's
execution of an Estoppel Letter which provided that:
The undersigned acknowledges that the Lender is
functioning solely as a lender in this
transaction, and has made no representations or
recommendations whatsoever concerning the
Partnership or the investment of the undersigned
therein. . . . The undersigned [also] warrants
that the obligation evidenced by his Note is his
valid and binding obligation, and agrees to make
payment thereof in accordance with the terms of
said Note, without counterclaim or setoff,
without regard to any defenses, counterclaims or
rights to setoff that the undersigned may have or
hereafter acquire against the Partnership, any
general partner thereof or any other person in
connection with the investment of the undersigned
in the Partnership, all of which defenses,
counter claims [sic] and rights to setoff are,
for the benefit of the Lender, its successor and
its assigns, hereby expressly waived.
If the Estoppel Letter is a valid agreement as between the
parties, it will overcome Wassel's affirmative defense of
fraud to the Note and entitle Generale to judgment as a matter
of law: Wassel's contractual acknowledgement that the Lender
made no representations or recommendations would preclude him
from proving fraud, because he would be unable to show that
Generale made any representations on which he relied. See Jo
Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 119, 302
N YS.2d 799, 803, 250 N.E.2d 214, 217 (1969) (fraud entails
knowingly false representation that victim relies on to his