FILED: NEW YORK COUNTY CLERK 12/15/ :47 AM INDEX NO /2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/15/2016

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1 FILED NEW YORK COUNTY CLERK 12/15/ AM INDEX NO /2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF 12/15/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x JPMORGAN CHASE FUNDING INC., Plaintiff, -against- RICHARD ALLEN HEHMAN, Defendant x Index No /2016 Hon. Carol R. Edmead Motion Seq. No. 1 PLAINTIFF JPMORGAN CHASE FUNDING INC. S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT S MOTION TO DISMISS THE COMPLAINT LEVI LUBARSKY FEIGENBAUM & WEISS LLP 655 Third Avenue, 27th Floor New York, New York (212) of 16

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT...1 FACTS...1 Page A. The Investment Program and Defendant s Full Recourse Loan...2 B. Defendant s Admission of His Full Recourse Loan Obligation...4 DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT...5 ARGUMENT...6 POINT I DEFENDANT S DOCUMENTARY EVIDENCE FAILS TO CONCLUSIVELY ESTABLISH A DEFENSE AS A MATTER OF LAW, AND THE MOTION TO DISMISS MUST THEREFORE BE DENIED...7 POINT II A. The Release Provision Does Not Cover Defendant s Full Recourse Loan, Because No Claim on or Liability with Respect to That Loan Existed as of December B. The Release Provision Does Not Bar JPMC Funding s Claims, Because It Specifically Applies Only to J.P. Morgan & Co. (and Not to JPMC Funding)...10 DEFENDANT IS ESTOPPED FROM DENYING HIS FULL RECOURSE LOAN OBLIGATION BY VIRTUE OF HAVING TAKEN A PRIOR INCONSISTENT POSITION...11 CONCLUSION of 16

3 TABLE OF AUTHORITIES Cases Page 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 746 N.Y.S.2d 131 (2002)... 6 Art & Fashion Grp. Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 992 N.Y.S.2d 7 (1st Dep t 2014)... 6, 6-7 Berlin v. Jakobson, 137 A.D.3d 659, 26 N.Y.S.3d 863 (1st Dep t 2016) Blonder & Co. v. Citibank, N.A., 28 A.D.3d 180, 808 N.Y.S.2d 214 (1st Dep t 2006)... 6 Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 951 N.Y.S.2d 393 (1st Dep t 2012)... 6 Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 A.D.2d 383, 737 N.Y.S.2d 40 (1st Dep t 2002)... 6 Goshen v. Mutual Life Ins. Co., 98 N.Y.2d 314, 746 N.Y.S.2d 858 (2002)... 6 Green v. Fairway Operating Corp., 72 A.D.3d 613, 898 N.Y.S.2d 848 (1st Dep t 2010)... 7 n.2 Inter-Reco, Inc. v. Lake Park 175 Froehlich Farm, LLC, 106 A.D.3d 955, 965 N.Y.S.2d 606 (2d Dep t 2013) J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 970 N.Y.S.2d 733 (2013)... 6 Johnson v. Lebanese Am. Univ., 84 A.D.3d 427, 922 N.Y.S.2d 57 (1st Dep t 2011) Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994)... 6 Lexington Ins. Co. v. Combustion Eng g, Inc., 264 A.D.2d 319, 693 N.Y.S.2d 146 (1st Dep t 1999)... 8 US Bank Nat l Ass n v. Perkins, No /2009, 2010 WL (Sup. Ct. N.Y. Cnty. Aug. 5, 2010)... 7 n.2 ii 3 of 16

4 Zemel v. Horowitz, 11 Misc. 3d 1058(A), 815 N.Y.S.2d 496 (Sup. Ct. N.Y. Cnty. 2006) Statutes & Rules CPLR 2309(c)... 7 n.2 CPLR CPLR 3211(a)(1)... 1, 6, 7 n.2 N.Y. Real Prop. Law 299-a(1)... 7 n.2 N.Y. Real Prop. Law 301-a(1)... 7 n.2 Other Authorities New York State, Department of State Division of Licensing Services, Licensee Name Search (Authorized Notaries Public), https//appext20.dos.ny.gov/lcns_public/lic_name_search_frm... 7 n.2 iii 4 of 16

5 Plaintiff JPMorgan Chase Funding Inc. ( JPMC Funding ), by and through its undersigned counsel, submits the following memorandum of law in opposition to the motion of defendant Richard Allen Hehman ( Defendant ) to dismiss the complaint in the above-captioned action pursuant to CPLR 3211(a)(1). PRELIMINARY STATEMENT Defendant seeks to avoid his obligation to repay a loan extended to him by JPMC Funding in connection with a private equity investment program. On his motion to dismiss, Defendant submits documentary evidence in the form of an employment separation agreement and argues that a release provision therein bars JPMC Funding s claims against him on the loan. The unambiguous terms of the release provision, however, make clear that any release of Defendant extends only to claims that existed prior to the execution date of the separation agreement, in December Since JPMC Funding s claims on the loan did not arise until 2010, the release provision does not apply here. Moreover, the release provision on its face applies only to J.P. Morgan & Co., and not to the separate entity JPMC Funding. The separation agreement thus fails to conclusively establish a defense as a matter of law, as is required to warrant dismissal founded upon documentary evidence. In addition, even if the release provision could somehow be construed as encompassing JPMC Funding s claims, Defendant should be estopped from relying on it, since he has explicitly admitted that the loan remains due and owing. Accordingly, Defendant s motion to dismiss must be denied. FACTS The following facts are set forth in JPMC Funding s complaint, dated June 8, 2016 (the Complaint ), and in the Affidavit of Francesca Ruggiero, sworn to on December 14, 5 of 16

6 2016 ( Ruggiero Aff. ) 1 A. The Investment Program and Defendant s Full Recourse Loan In 2000, Defendant, along with other high-level employees of J.P Morgan & Co. Incorporated (the predecessor in interest to JPMorgan Chase & Co.) and its subsidiaries, was offered the opportunity to participate in a private equity investment program known as the 2000 MD Investment Program (the Investment Program ). Levi Aff., Ex. 1 (Complaint) 2, 12-13, 40. Participation in the Investment Program, which was entirely voluntary, was established through the purchase of a limited partner interest in Sixty Wall Street Fund, L.P. (the Fund or the Partnership ), the governing terms of which were defined in the Third Amended and Restated Agreement of Limited Partnership of Sixty Wall Street Fund, L.P. (the Partnership Agreement ). Id. 2, 13-14; Compl. Ex. 1. The offer to purchase interests in the Partnership was made solely pursuant to the terms of an offering memorandum (the Offering Memorandum ). Id. 17; Compl. Ex. 3. The Investment Program offered the potential for returns higher than those available even from a general portfolio of private equity investments, due to a built-in system of recourse and non-recourse financing (collectively, Leverage ). Id , Leverage consisted of both Full Recourse Loans and Non-Recourse Loans, which participating investors in the Investment Program borrowed from a designated lender. Id. 19, 22-23, 32. Full Recourse Loans were extended on a full recourse basis, meaning that investors could become personally liable, on a future out of-pocket basis, for the repayment of such loans. Id. 20; Compl. Ex. 1 at 4.03(a)(i). Proceeds from the Full Recourse Loans funded participating limited partners ( Participating Partners ) pro rata shares of Fund investments above and 1 The Complaint, together with its accompanying exhibits, is annexed as Exhibit 1 to the Affirmation of Howard B. Levi, Esq., dated December 15, 2016 ( Levi Aff. ). 2 6 of 16

7 beyond their initial cash subscriptions. Id. 21. Repayment of Leverage was to be made first out of a Participating Partner s share of investment proceeds. Id. 25. That share would be distributed to the lender of the Full Recourse and Non-Recourse Loans, as repayment, first on any unpaid interest on the Participating Partner s Non-Recourse Loan, then on any outstanding Non-Recourse Loan principal, then on any unpaid interest on the Participating Partner s Full Recourse Loan, and finally on any outstanding Full Recourse Loan principal. Id If, however, a Participating Partner s share of investment proceeds proved insufficient to repay his or her Full Recourse Loan, then the Participating Partner would be required to personally repay his Full Recourse Loan (plus interest accrued thereon), to the extent of any and all shortfall. Id. 27. Full Recourse Loans matured and became due and payable (with accrued interest) on the earliest to occur of three possible dates specified in the Partnership Agreement Each such Full Recourse Loan... shall mature, and the principal amount thereof (together with any accrued and unpaid [interest] thereon) shall be due and payable, on the earliest to occur of (i)..., the tenth anniversary of the date [the participating partner/investor] is admitted to the Partnership..., (ii) the date the principal amount of (together with any accrued and unpaid [interest]) such Full Recourse Loan... has been prepaid in full from [proceeds received in respect of Partnership investments], [certain investment income attributable to the partner/investor, and [certain funds representing mandatory prepayments] and (iii) the date on which such Participating Partner s entire Annual Interest with respect to such Leveraged Program is purchased by the General Partner or any of its affiliates in accordance with Section 6.02(d). Id. 34; Compl. Ex. 1 at 4.03(a)(i) (emphasis added). In 2000, Defendant elected to participate in the Investment Program and, having submitted a cash subscription in the amount of $50,000, was admitted to the Partnership as a limited partner. Id As the designated lender for the Investment Program, JPMC Funding (formerly known as J.P. Morgan Ventures Corporation) extended a Full Recourse Loan 3 7 of 16

8 to Defendant in 2000, as was required in connection with his investment in the Fund. Id. 1, 22-23, 32-33, 44. Of the total Leverage actually drawn for the benefit of Defendant, $16, was funded in the form of the Full Recourse Loan to Defendant. Id. 45. By around mid-2006, it became apparent to the Partnership that investment proceeds from the Investment Program would likely prove insufficient to repay the Full Recourse Loans. Id. 48. Defendant was offered multiple opportunities to prepay in full his outstanding Full Recourse Loan and thereby cease the accrual of interest on that Loan. Id He chose, however, not to prepay. Id. Pursuant to the terms of the Investment Program, Defendant s Full Recourse Loan matured on June 9, 2010 (i.e., the tenth anniversary of his admission to the Partnership). Id. 62. Based on Defendant s share of investment returns for the Investment Program as of that maturity date, there were insufficient proceeds to repay a substantial portion of his Non-Recourse Loan. Id. 60, 62. Accordingly, the full amount owing by Defendant to JPMC Funding in respect of his Full Recourse Loan ($16, in principal, plus accrued interest of $9,386.20), became due and payable. Id. 62. Defendant, however, has failed to make any payment on the Full Recourse Loan principal and interest due. Id B. Defendant s Admission of His Full Recourse Loan Obligation By letter dated June 19, 2014, JPMC Funding (i) advised Defendant (and over 300 other limited partners of the Fund, in connection with standard tax administration of the Fund) that it intended to foreclose on his limited partner interest in the Fund in satisfaction of his outstanding Non-Recourse Loan obligation, and (ii) requested that he execute and return an enclosed form of transfer agreement to effectuate that process. Ruggiero Aff. 2; Ex. 1. By follow-up letter dated July 18, 2014, JPMC Funding again requested that Defendant execute an enclosed form of transfer agreement (the Transfer ). Id. 3; Ex of 16

9 Defendant returned an executed Transfer, dated August 14, Ruggiero Aff. 4; Ex. 3. The Transfer he signed states, in pertinent part Reference is made to the Sixty Wall Street Fund, L.P. (the Fund ) 2000 MD Program (the Program ) and the Non-Recourse Loan with respect to the Program (the Non-Recourse Loan ) entered into by JPMorgan Chase Funding Inc., as lender (the Lender ), and the undersigned borrower (the Borrower ) when the Borrower subscribed for the Borrower s limited partnership interest in the Fund with respect to the Program (the Annual Interest ). The Borrower represents that (a) the Borrower has right, title and interest in the Annual Interest Notwithstanding anything herein to the contrary, transfer of the Annual Interest shall have no bearing on the validity or amount of Borrower s Full Recourse Loan obligation to JPMorgan Chase Funding Inc., which remains fully due and owing. Id., Ex. 3 (emphasis added). DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT In purported support of his motion to dismiss, Defendant submits a letter, dated December 28, 2000, embodying the terms of an employment separation agreement between J.P. Morgan & Co. (defined in the agreement as Morgan ) and him (the Separation Agreement ). Affidavit of Richard Allen Hehman dated November 10, 2016 ( Hehman Aff. ), Ex. A at 1. The Separation Agreement includes release provisions stating, in pertinent part (the Release Provision ) Morgan hereby releases and forever discharges you from all claims, agreements, causes of action, demands or liabilities of any nature whatsoever, existing at any time prior to the execution of this Agreement, whether now known or claimed, including without limitation, all claims arising from or relating to your employment with Morgan and/or the termination of your employment.... Id. at 4 (emphases added). 5 9 of 16

10 ARGUMENT The legal standards governing motions to dismiss pursuant to CPLR 3211 are well established. On such motions, the pleading is to be afforded a liberal construction and courts are required to accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 974 (1994); see also 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 134 (2002) (same; courts must also accept as true the facts alleged... in any submissions in opposition to the dismissal motion ). To prevail on a motion to dismiss pursuant to CPLR 3211(a)(1), the moving party... must establish that the documentary evidence conclusively refutes the plaintiff s allegations. J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 738 (2013); see also Art & Fashion Grp. Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 438, 992 N.Y.S.2d 7, 10 (1st Dep t 2014) ( A cause of action may be dismissed under CPLR 3211(a)(1) only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law. (quoting Goshen v. Mutual Life Ins. Co., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 865 (2002)). The documentary evidence in support of the motion must resolve all factual issues as a matter of law, Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 A.D.2d 383, 383, 737 N.Y.S.2d 40, 40 (1st Dep t 2002), and must definitely dispose of [the] plaintiff s claim. Blonder & Co. v. Citibank, N.A., 28 A.D.3d 180, 182, 808 N.Y.S.2d 214, 217 (1st Dep t 2006). Affidavits submitted by the moving party do not constitute documentary evidence within the meaning of CPLR 3211(a)(1). Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 431, 951 N.Y.S.2d 393, 394 (1st Dep t 2012); Art & Fashion Grp., 120 A.D.3d at 438, 992 N.Y.S.2d 6 10 of 16

11 at 10 ( Factual affidavits, however, do not constitute documentary evidence within the meaning of the statute. ). POINT I DEFENDANT S DOCUMENTARY EVIDENCE FAILS TO CONCLUSIVELY ESTABLISH A DEFENSE AS A MATTER OF LAW, AND THE MOTION TO DISMISS MUST THEREFORE BE DENIED Defendant contends that the Release Provision of the Separation Agreement precludes JPMC Funding s claims because his Full Recourse Loan falls within the scope of that release. Hehman Aff. at 7. 2 He is wrong. Accepting the allegations of the Complaint as true, and affording JPMC Funding the benefit of every possible inference, it is clear that the Release Provision, by its terms, does not definitively establish a defense as a matter of law or conclusively dispose of JPMC Funding s claims. 2 To the extent that Defendant s contentions are predicated upon specific factual assertions set forth in his Affidavit (rather than upon legal arguments made therein or documentary evidence annexed thereto), those assertions have no weight here, since, as noted above, a defendant s factual affidavit does not constitute documentary evidence under CPLR 3211(a)(1). In fact, Defendant s alleged affidavit should not be considered in any respect whatsoever, since it is not properly before the Court. The Affidavit bears a supposed notary public stamp from one Mohammad A. Haque (at 8), but that stamp gives no indication of being a New York State notary public stamp, and a search for Mr. Haque s name in the New York State Division of Licensing Services list of authorized notaries public reveals no match for his name. See https//appext20.dos.ny.gov/lcns_public/lic_name_search_frm. If Mr. Haque is a notary public licensed under the laws of another jurisdiction, the Affidavit is procedurally defective, and should not be considered by the Court, since it lacks the certificate of conformity required for affidavits executed outside New York. See CPLR 2309(c) ( An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation. ); N.Y. Real Prop. Law 299-a(1), 301-a(1) (an instrument that is acknowledged outside of the jurisdiction of New York or of the United States pursuant to the laws of such state or foreign country must be accompanied by a certificate of conformity to the effect that it conforms to such laws). Accordingly, given the absence of a competent affidavit and thus of any legally sufficient moving papers, Defendant s motion to dismiss should be denied. See Green v. Fairway Operating Corp., 72 A.D.3d 613, 898 N.Y.S.2d 848, 848 (1st Dep t 2010) (holding that affidavit, purportedly sworn to in the Dominican Republic, lacked certificate of conformity and therefore was not properly before the court); US Bank Nat l Ass n v. Perkins, No /2009, 2010 WL (Sup. Ct. N.Y. Cnty. Aug. 5, 2010) (denying summary judgment motion due to lack of sufficient evidence where affidavits executed outside of New York State were deemed not properly before the court because unaccompanied by certificate of conformity) of 16

12 A. The Release Provision Does Not Cover Defendant s Full Recourse Loan, Because No Claim on or Liability with Respect to That Loan Existed as of December 2000 Defendant s position overlooks the plain fact that the Release Provision, in clear and unambiguous language, applies only to those claims and liabilities existing at any time prior to the execution of this [Separation] Agreement. Id., Ex. A at 4. Thus, while the Release Provision may contemplate a broad release in terms of the types of claims and liabilities it encompasses, 3 its coverage is expressly limited with respect to the dates of any such claims and liabilities. Thus, all claims and liabilities that did not exist prior to December 28, 2000 the execution date of the Separation Agreement fall outside the scope of the Release Provision. See Lexington Ins. Co. v. Combustion Eng g, Inc., 264 A.D.2d 319, 322, 693 N.Y.S.2d 146, 148 (1st Dep t 1999) ( Where the language of a release is to be limited to only particular claims, demands or obligations, the instrument will be operative as to those matters alone, and will not release other claims demands or obligations. (internal quotation marks and citation omitted)). Here, as is alleged in the Complaint, JPMC Funding s claims on the Full Recourse Loan, and Defendant s liability with respect to that Loan, did not exist as of December First, Defendant would become personally liable for the Full Recourse Loan only if his share of investment proceeds of the Investment Program proved insufficient to reimburse JPMC Funding for that Loan. See, e.g., Levi Aff., Ex. 1 27, 30. In December 2000, merely a few months into Defendant s participation in the Investment Program, there was no way to tell whether Defendant s share of any future investment proceeds would prove sufficient to cover his Full Recourse Loan. See id. 50 (noting that even as late as mid-2006, it only appeared unlikely, 3 Defendant argues that the Full Recourse Loan arose directly from his former employment with Morgan. Hehman Aff. at 7. Without conceding that the Full Recourse Loan did arise from or relate to Defendant s employment, JPMC Funding notes that the Release Provision covers claims and liabilities of any nature whatsoever (so long as they existed prior to December 28, 2000), and not just those claims or liabilities arising from or relating to Defendant s former employment. Id., Ex. A at of 16

13 and not definite, that such proceeds would cover the Full Recourse Loan). Defendant s liability on the Full Recourse Loan thus did not exist as of the date of the Separation Agreement; as such, JPMC Funding likewise had no claims on that Loan as of that date. Second, as is also alleged in the Complaint, Defendant would not become personally liable on the Full Recourse Loan, if at all, until the maturity date of that Loan. Id. 34. Pursuant to the terms of the Investment Program, his Full Recourse Loan did not mature and become due and payable until July 9, Id. 62; see also id. 34; Compl. Ex. 1 at 4.03(a)(i) (Full Recourse Loans matured on earliest to occur of tenth anniversary of admission to the Partnership, the date Investment Program proceeds could prepay the Full Recourse Loan in full, or the date a Participating Partner s interest was purchased by the General Partner). Accordingly, Defendant had no liability on the Full Recourse Loan as of the date of the Separation Agreement, and JPMC Funding likewise had no claims on that Loan as of that date. Defendant s argument (at 7) that the Full Recourse Loan was known by the parties to the Separation Agreement when they entered into that Agreement is irrelevant and cannot support a defense as a matter of law. For purposes of evaluating the scope of the Release Provision, what matters is not whether the parties to the Separation Agreement knew about the Full Recourse Loan as of December 28, 2000 or even whether the Full Recourse Loan had been extended as of December 28, 2000, but rather whether any claims on or liabilities with respect to that Loan existed as of that date. For the reasons explained above, no such claims or liabilities existed at that time. Moreover, Defendant s related argument that the parties to the Severance Agreement knew of the Full Recourse Loan since that Agreement provided that, notwithstanding his leaving employment, his interest in the Investment Program would vest (at 7) only further establishes that he continued to participate in the Investment Program pursuant to the terms 9 13 of 16

14 thereof. See Hehman Aff., Ex. A at 2 (any entitlement to any unvested leveraged interests in the 60 Wall Street Fund would be made subject to the provisions of the applicable plan[] ). B. The Release Provision Does Not Bar JPMC Funding s Claims, Because It Specifically Applies Only to J.P. Morgan & Co. (and Not to JPMC Funding) Defendant s argument that the Release Provision protects him from JPMC Funding s action on the Full Recourse Loan is unavailing for the independent reason that the Release Provision, by its terms, specifically applies only to J.P. Morgan & Co. (and not to JPMC Funding, a separate entity and the only plaintiff here). The Release Provision provides that Morgan hereby releases and forever discharges you [i.e., Defendant] from all claims and liabilities existing prior to execution of the Separation Agreement. Hehman Aff., Ex. A at 4 (emphasis added). As expressly defined in the Separation Agreement, Morgan means J.P. Morgan & Co. Id. at 1 ( This letter confirms the substance of our discussions regarding your leaving active employment with J.P. Morgan & Co. ( Morgan ) effective November 30, ). Nowhere does the Separation Agreement define the term Morgan to encompass any subsidiary or affiliate of J.P. Morgan & Co. As such, the unambiguous language of the Release Provision establishes that the only entity providing any release of claims or liabilities to Defendant was J.P. Morgan & Co. Since this clear and unequivocal language must be given effect, and since releases are to be construed narrowly and enforced according to their terms, JPMC Funding may not also be deemed a releasor. See, e.g., Johnson v. Lebanese Am. Univ., 84 A.D.3d 427, 435, 922 N.Y.S.2d 57, (1st Dep t 2011) ( If the language of a contract, including a release, is clear and unambiguous, effect will be given to the intention of the parties as indicated by the language employed and the fact that one of the parties may have intended something else is irrelevant. (internal quotation marks and citation omitted)); Inter-Reco, Inc. v. Lake Park 175 Froehlich of 16

15 Farm, LLC, 106 A.D.3d 955, 955, 965 N.Y.S.2d 606, 607 (2d Dep t 2013) ( [A] release is governed by principles of contract law, and a release that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms. (internal quotation marks and citation omitted)); Berlin v. Jakobson, 137 A.D.3d 659, 660, 26 N.Y.S.3d 863 (1st Dep t 2016) (a release is to be given a narrow construction ). against Defendant. Accordingly, nothing in the Release Provision bars JPMC Funding s claims * * * In sum, the Release Provision, by its unequivocal terms, does not prohibit JPMC Funding s claims in this action. The Separation Agreement, then, does not utterly refute the allegations in the Complaint or conclusively establish a defense as a matter of law, and it therefore fails to constitute documentary evidence requiring dismissal. POINT II DEFENDANT IS ESTOPPED FROM DENYING HIS FULL RECOURSE LOAN OBLIGATION BY VIRTUE OF HAVING TAKEN A PRIOR INCONSISTENT POSITION Even if the Severance Agreement could somehow be construed as covering JPMC Funding s claims in this action, Defendant is estopped from invoking the Release Provision to avoid his obligation under the Full Recourse Loan in the circumstances present here. Defendant has expressly admitted that his Full Recourse Loan obligation remains outstanding. As set forth in his executed Transfer, dated August 2014, Defendant represented and agreed, inter alia, that the transfer at issue shall have no bearing on the validity or amount of [his] Full Recourse Loan obligation to [JPMC Funding], which remains fully due and owing. Ruggiero Aff., Ex. 3 (emphasis added) of 16

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