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GOLDBERG v. KIDDER PEABODY & CO.

March 31, 1997

HAROLD S. GOLDBERG, Plaintiff,
v.
KIDDER PEABODY & CO., INC. and MARK SERRUTO and JOHN DOES 1-10, Defendants.



The opinion of the court was delivered by: JONES

 BARBARA S. JONES

 UNITED STATES DISTRICT JUDGE

 After six years of discovery, plaintiff's case amounts to nothing more than the kind of "swearing contest" that Modern Settings, Inc. v. Prudential Bache, Inc., 936 F.2d 640 (2d Cir. 1991), seeks to prevent. For the following reasons, defendants motion for summary judgment pursuant to Fed.R.Civ.P. 56 is granted. Case dismissed.

 BACKGROUND

 Plaintiff is a millionaire physician who has held at least 15 different investment accounts with a dozen different securities firms. He has been familiar with investment terminology since 1956, and he has followed his broker's advice as a matter of course.

 In April 1986, plaintiff opened a brokerage account (the "Account") with defendant Kidder, Peabody & Co, Inc. ("Kidder"). Defendant Mark Serruto ("Serruto"), a Kidder account representative, oversaw trading in the account.

 In order to activate the Account, plaintiff signed Kidder's standard "Customer's Agreement," which states in part:

 
Reports of the execution of orders and statements of account made by [Kidder] shall be conclusive if not objected to by written notice delivered to [Kidder] within two business days or ten days, respectively, after delivery or communications of the reports or statements to [plaintiff] by [Kidder].

 After he opened his account with Kidder, plaintiff authorized Serruto to effectuate hundreds of trades. In this connection, plaintiff traded based on Serruto's recommendations, treating Serruto like his "son" and accepting his investment advice without hesitation.

 Pursuant to the Customer's Agreement, plaintiff regularly received (1) "reports of the execution of orders" ("Confirmations") and (2) "statements of accounts" ("Account Statements") concerning his Account. The Confirmations confirmed each trade the defendants undertook on his behalf and indicated the trade and settlement date of each transaction, the number and price of the shares traded, and the commissions earned. The Account Statements memorialized the accounts monthly activity.

 Three of the trades that appeared on both the Confirmations and Account Statements plaintiff received included a November 7, 1989 purchase of American Express shares, an April 10, 1990 purchase of L.A. Gear shares, and a December 18, 1990 purchase of Coca Cola shares (collectively, the "Disputed Transactions"). It is undisputed that plaintiff never made any written objections to these trades or to the subsequent handling of the stock. Rather, plaintiff executed these trades "without hesitation" pursuant to Serruto's suggestion.

 Due to market fluctuations, plaintiff lost over $ 300,000 on the Disputed Transactions. He then filed this suit, *fn1" complaining of irregularities and manipulation surrounding the transactions and asserting claims for common law fraud, negligence, breach of contract, and conversion, as well as violations of the federal RICO statute and the federal securities laws. *fn2"

 DISCUSSIO ...


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