to the express terms of their agreement with defendant. Id. at 28. Plaintiffs did not respond to any of defendant's arguments rebutting plaintiffs' fraud claim.
The elements of common law fraud are: (1) the defendant made a material false representation or omission; (2) the defendant intended to defraud the plaintiff thereby; (3) the plaintiff reasonably relied upon the representation; and (4) the plaintiff suffered damage as a result of his reliance. Swersky v. Dreyer and Traub, 219 A.D.2d 321, 326, 643 N.Y.S.2d 33, 36 (N.Y. App. Div. 1996) (citing Banque Arabe et Internationale D'Investissement v. Maryland National Bank, 57 F.3d 146, 153 (2d Cir. 1995) (applying New York law)).
Absent fraud or other excuse, signatories to an agreement are conclusively presumed knowingly to agree to all of the agreement's terms. See Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional de Venezuela, 991 F.2d 42, 46 (2d Cir. 1993) (citing Level Export Corp. v. Wolz, Aiken & Co., 305 N.Y. 82, 87, 111 N.E.2d 218, 221 (N.Y. 1953)). In addition, under New York law, where an agreement contains a clause barring oral modifications, "if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls." Towers Charter & Marine Corp. v. Cadillac Ins. Co., 708 F. Supp. 612, 614 (S.D.N.Y. 1989) (citing Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 343, 397 N.Y.S.2d 922, 926, 366 N.E.2d 1279, 1282 (1977)).
If a party moving for summary judgment satisfies its burden of establishing the absence of a genuine question of material fact on an issue, the burden shifts to the non-moving party to present specific facts that demonstrate a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. In the instant case, defendant has established that the Factoring Agreement explicitly provides that either party could unilaterally terminate the agreement upon sixty days notice, and that the agreement could be modified only by a written instrument signed by both parties. Plaintiffs, however, have not responded with specific facts that demonstrate a genuine issue for trial. They have not alleged that they were fraudulently or otherwise wrongly induced to enter the Factoring Agreement. Plaintiffs similarly have failed either to allege or to prove the existence of any written agreement--let alone one signed by both parties--that expressly alters the parties' ability to terminate the Factoring Agreement.
Under New York law, the failure to offer such proof raises the conclusive presumption that plaintiffs were aware of Sections 8.1 and 10.1 of the Factoring Agreement, and consequently, were aware of both the agreement's unilateral termination provision and the steps necessary to modify it. See Progressive Casualty Ins. Co., 991 F.2d at 46 (citation omitted). In light of plaintiffs' presumed knowledge of the Factoring Agreement, this Court finds that plaintiffs have produced no facts to establish that they could reasonably have relied upon BTC's alleged oral modification of the Factoring Agreement on May 25, 1989, under which BTC allegedly relinquished its right to unilaterally terminate the agreement. Accordingly, this Court finds that plaintiffs have failed to satisfy their burden of production in response to defendant's motion for summary judgment, and that defendant is therefore entitled to summary judgment on plaintiffs' fraud claim.
e. Claim 5: Breach of Duty of Confidentiality
Plaintiffs do not plead in Count Five that defendant breached a duty of confidentiality owed to them. Rather, in their memorandum in opposition to summary judgment, plaintiffs assert for the first time that defendant "breached its duty of confidentiality when it transmitted information regarding the company's finances through open facsimile lines." (Plaintiffs' Memo at 38.) Defendant argues, in its reply memorandum, that it owed plaintiff no duty of confidentiality. (BTC Reply Memo at 20-21.) This Court takes a dim view of claims raised for the first time in a motion opposing summary judgment. For the sake of completeness, however, this Court will address plaintiffs' allegations of defendant's breach of a duty of confidentiality.
In determining whether a duty of confidentiality is owed by a bank to its customers, New York distinguishes between a bank's depositors and its debtors. See, e.g., Sharma v. Skaarup Ship Mgt. Corp., 699 F. Supp. 440, 449 (S.D.N.Y. 1988), aff'd, 916 F.2d 820 (2d Cir. 1990), cert. denied, 499 U.S. 907 (1991) (citation omitted); Norkin v. Hoey, 181 A.D.2d 248, 255, 586 N.Y.S.2d 926, 931 (N.Y. App. Div. 1992); Boccardo v. Citibank, N.A., 152 Misc. 2d 1012, 1014-15, 579 N.Y.S.2d 836, 838 (N.Y. Sup. Ct. 1991). "Whatever expectations of confidentiality may inhere in the traditional relationship between a bank and a depositor, such expectations are wholly lacking in the context of the debtor-creditor loan relationship . . . even under the most liberal authorities in this state." Norkin, 181 A.D.2d at 255, 586 N.Y.S.2d 926. The status of a debtor's loan is "not information that the borrower would normally expect would be kept confidential. One who defaults on his debts . . . cannot expect that his default will be kept a secret. " Graney Development Corp. v. Taksen, 92 Misc. 2d 764, 768, 400 N.Y.S.2d 717, 720 (N.Y. Sup. Ct. 1978) (emphasis added), aff'd, 66 A.D.2d 1008, 411 N.Y.S.2d 756 (N.Y. App. Div. 1978). Plaintiffs counter that "the Second Circuit has encouraged New York to recognize that banks owe a duty of confidentiality to all of their customers." (Plaintiffs' Memo at 39 (citing Young v. United States Dept. of Justice, 882 F.2d 633, 640-43 (2d Cir. 1989))). Absent binding precedent, however, this Court declines the opportunity to rearrange the longstanding relationships among New York's banks and their customers. Accordingly, this Court finds that, as debtor and creditor, no duty of confidentiality existed between these parties. Therefore, summary judgment should be granted to defendant on plaintiffs' claim of breach of confidentiality.
f. Claim 6: Mental Anguish and Emotional Distress
Within Count Five, plaintiffs claim that "the actions of [BTC] caused tremendous personal hardship upon the plaintiff, Bonnie Boerer[,] and further resulted in extreme mental anguish and emotional distress." (Complaint P 63.) Curiously, plaintiffs also include in Count Five a separate damages claim for "mental anguish and emotional distress for breach of contract." Id. Because of the vague and ambiguous drafting of plaintiffs' papers, it is difficult to determine whether both emotional distress claims emanate from BTC's alleged breach of contract, or if the first claim arises in tort. Defendant's summary judgment papers reflect a similar confusion, and therefore address both possibilities. (BTC Memo at 32-34.) Plaintiffs' submissions opposing summary judgment offer no clarification--beyond the allegations in the Complaint, plaintiffs do not elaborate or substantiate their claims for emotional distress. As a result, this Court will address plaintiffs' first emotional distress claim assuming it is in tort, and will reserve decision on their emotional distress for breach of contract claim for resolution with plaintiffs' damages claims below.
In support of its motion for summary judgment on this claim, defendant does not dispute any of plaintiffs' factual allegations concerning the faxing of the notice of termination. See (BTC Memo at 32-33.) Instead, defendant argues that its conduct did not rise to the level required to sustain a claim for intentional infliction of emotional distress. Id. In addition, defendant argues that plaintiffs have proffered no evidence suggesting a causal connection between the faxing of the notice of termination and anyone's (presumably Boerer's) emotional distress. Plaintiffs failed to respond to defendant's arguments in the papers they submitted in opposition to summary judgment.
Under New York law, the tort of intentional infliction of emotional distress requires "extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Freihofer v. Hearst Corp., 65 N.Y.2d 135, 144, 480 N.E.2d 349, 490 N.Y.S.2d 735 (N.Y. 1985) (citation omitted). Recently, the New York Court of Appeals explained that:
The tort [of intentional infliction of emotional distress] has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and the injury; and (iv) severe emotional distress.