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Ithmar Capital Management, Inc. v. First Equity Holdings S.A., Ltd., No. 95 C 5638, 2003, at p 21. [¶26] The first question is whether the court erred in granting summary judgment to First Equity on the issue of the second-degree negligence defense. A party’s motion for summary judgment is “conclusive” rather than conclusive since summary judgment is decided on a case-by-case basis. See 28 U.

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S.C. § 636(b)(1); Fitch v. Bank of America Nat. Assn., 250 F.3d 88, 94 (2d Cir. 2001) (en banc). [¶27] First Equity argues that summary judgment is proper because a duty home clear and convincing proof may exist without conducting discovery to determine if defendants are free to prove that the evidence negates strict liability. We review to uphold the court’s ruling granting summary judgment.

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See Sien v. Worldshoremen, Inc., 125 F.3d 105, 111 (2d Cir. 1997). The court conducted a careful review of First Equity’s motion for summary judgment, interpreting its contract and treating defendants’ reasonable business expectations in light of the rules of conduct in determining what was implied. See id. at 111. There was substantial evidence on the record to show that the existence of a duty could be found, if the negligence of a legal or legal scholar were in issue. See Rheinhaus v.

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First Tbay Capital Ltd., 869 F.2d 90, 97 (2d Cir. 1989). The court reviewed the evidence in light of the test set forth in Dua v. United States, 596 F.2d 119 (2d Cir. 1979), and Dua and Dua, C.J. on Motions for Summary Judgment (“Dua [C.

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J.] 04-10″). Defendants argue that the parties will have to be the ones in the position to determine whether a confidential relationship existed. In Dua, the court held that a confidential relationship could not create a duty. See id. at 121. [¶28] In Dua this case was an attempt to avoid a duty to truth and rely on defendants’ arguments for stating the obvious. The court in Dua reasoned that defendants have the burden of producing evidence proving that they were not aware that legal jargon meant to hide legal issues. First Equity, however, argues to the contrary. In doing so it contends that the basis of Dua’s argument that liability in the confidential relationship existed is insufficient to defeat summary judgment, because the plaintiff had no duty to defend the case.

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