UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------------- X

SUSAN PINSKY,

Plaintiff,

- against -

JP MORGAN CHASE & CO.,

Defendant.

--------------------------------------------------------------------- X

07 Civ. 3328 (CM)

DECLARATION SUBMITTED

PURSUANT TO RULE 56(F)

OF THE FEDERAL RULES

OF CIVIL PROCEDURE 

Arthur Z. Schwartz declares, under penalty of perjury, as follows:

1. Our office represents plaintiff in the above-referenced matter.

2. Defendant has moved for summary judgment, asserting that a release signed by

plaintiff in 2005 bars the instant action.

3. By its own terms, the release, which flowed out of a reduction in force following

the reorganization of plaintiff’s department, was to take effect upon plaintiff’s termination from

employment, which was not going to occur until July 18, 2005. Prior to July 18, 2005, plaintiff

was to have an opportunity to find another position at JP Morgan Chase. If that had occurred, the

release was to be null and void. Given plaintiff’s high level of performance in the JP Morgan

Chase mortgage department, she fully expected to remain employed.

4. Unfortunately, due to defendant’s failure to accommodate plaintiff’s disability,

she suffered an injury and had to stop working on or about June 25, 2005 and was placed on

disability leave. Under defendant’s disability leave plan, she could not be terminated while out

Case 1:07-cv-03328-CM-HBP Document 25 Filed 09/27/2007 Page 1 of 3
2

on leave. Instead, she continued to be paid a long-term disability benefit, and maintained all of

her employee benefit. In early 2007, while still out on leave, plaintiff filed this lawsuit alleging

discrimination under the State and City Human Rights Laws. Defendant removed the case to

Federal Court on diversity grounds, and plaintiff has filed an amended complaint, adding an

Americans with Disabilities Act claim.

5. Although defendant pleaded the release as an affirmative defense, it could not

claim that the release had been effectuated since plaintiff had not received the payments due

under the severance agreement.

6. In July 2007, plaintiff’s surgeon, who operated to correct her disability, wrote

a note stating that plaintiff “is cleared to return to work on September 1.” Without even

examining plaintiff, defendant had her disability payments stopped, cancelled her leave, began

making the severance payments, and claimed that the release went into effect sometime in early

September, 2007.

7. These circumstances give rise to two issues which impact on the summary

judgment motion:

a. Plaintiff is not, in fact, ready to return to work. Her treating physicians, in

August 2007, noting an exacerbation of her condition, have delayed her return. If being healthy

enough to work is a condition of putting the severance agreement into effect, there remains an

issue of fact regarding whether it should have been triggered under the most generous view of its

applicability.

Case 1:07-cv-03328-CM-HBP Document 25 Filed 09/27/2007 Page 2 of 3
3

b. There are substantive, fact-based issues (as well as an issue of law) about

whether the severance agreement could be triggered after plaintiff filed suit. There are questions

about what event could trigger the agreement, and whether it could be triggered without plaintiff

beginning her job search within JP Morgan Chase. It appears that defendant decided to begin

running the “60 day clock” in July 2007 and declared it over in September 2007. The documents

attached to the motion do not lend great clarity to these issues.

8. Defendant now asks us to litigate this summary judgment motion before we take

depositions which would clarify this issue. Both sides have provided an extensive number of

documents, but defendant has resisted the taking of depositions.

9. This past week, the Court denied a Motion to Stay Discovery.

WHEREFORE, plaintiff requests that the Court either adjourn the return date of the

motion until 45 days after discovery is completed, allowing for a full exploration of the terms of

the release, and allowing experts on both sides to weigh in on when or whether plaintiff has

recovered, or that the Court bar defendant from proceeding further with its motion.

Dated: New York, New York

September 27, 2007

SCHWARTZ, LICHTEN & BRIGHT, P.C.

Attorneys for Plaintiff

By: /s/ 

 Arthur Z. Schwartz (AZS 2683)

 275 Seventh Avenue, 17th Floor

 New York, New York 10001

 (212) 228-6320

 Fax: (212) 358-1353

 E-mail: districtleader@msn.com

Case 1:07-cv-03328-CM-HBP Document 25 Filed 09/27/2007 Page 3 of 3