NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3506-14T1

BRIAN SULLIVAN,

Plaintiff-Appellant,

v.

THE PORT AUTHORITY OF NEW YORK 

AND NEW JERSEY; MICHAEL FEDORKO,

(acting in his individual and 

official capacities); MARY LEE 

HANNEL, (acting in her individual 

and official capacities); RICHARD 

WILLIAMS, (acting in his individual 

and official capacities); ROBERT E. 

VAN ETTEN, (acting in his individual

and official capacities); and MICHAEL

NESTOR, (acting in his individual

and official capacities),

Defendants-Respondents.

_____________________________________

Argued October 13, 2016 – Decided

Before Judges Simonelli, Carroll and Gooden 

Brown. 

On appeal from the Superior Court of New 

Jersey, Law Division, Hudson County, Docket 

No. L-2340-13.

Donald F. Burke argued the cause for 

appellant (Law Office of Donald F. Burke, 

attorneys; Mr. Burke and Donald F. Burke,

Jr., on the briefs).

March 15, 2017

APPROVED FOR PUBLICATION

March 15, 2017

APPELLATE DIVISION
2 A-3506-14T1

Cheryl N. Alterman argued the cause for 

respondents (Margaret Taylor-Finucane,

attorney; Ms. Alterman, on the briefs).

The opinion of the court was delivered by

SIMONELLI, J.A.D.

Plaintiff Brian Sullivan, a former at-will employee of 

defendant Port Authority of New York and New Jersey (Port 

Authority), filed a complaint against the Port Authority and 

individual defendants, alleging retaliation and civil conspiracy 

in violation of the New Jersey Conscientious Employee Protection 

Act (CEPA), N.J.S.A. 34:19-1 to -14. The trial court granted 

summary judgment to defendants and dismissed the complaint with 

prejudice, finding the Port Authority is not subject to suit 

under CEPA. We agree, and affirm. 

Defendants supported their summary judgment motion with a 

statement of material facts and two certifications with attached 

documents. Plaintiff did not file a responding statement either 

admitting or disputing each fact in defendants' statement, nor 

did he file a responding statement of additional facts, as 

required by Rule 4:46-2(b). Plaintiff also did not file an 

affidavit or certification setting forth specific facts showing 

there was a genuine issue for trial, as required by Rule 4:46-

5(a), nor did he provide any deposition transcripts or certified 

answers to interrogatories. Rather, he improperly relied on the 
3 A-3506-14T1

unverified allegations in his complaint, as he does in his 

merits brief on appeal. See R. 4:46-5(a) (prohibiting an 

adverse party from relying on the mere allegations of his 

pleading to oppose summary judgment). Plaintiff's reliance on 

the bare conclusions in the complaint without support in 

affidavits was insufficient to defeat defendants' summary 

judgment motion. U.S. Pipe & Foundry Co. v. Am. Arbitration

Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961). 

We derive the following facts from the evidence defendants 

submitted in support of their motion. From February 9, 1987, to 

June 6, 2012, plaintiff was employed as a police officer in the 

Port Authority's Public Safety Department. He attained the rank 

of police inspector. As an inspector, he held the position of 

Subject Matter Expert and participated in the development and 

administration of the evaluation and exam process for police 

officers seeking promotion to the rank of sergeant. In June 

2011, he acknowledged receipt of and signed a document entitled 

"Subject Matter Expert, Test Security Instructions," which 

required him to immediately notify the Assessment Specialist and 

the Supervisor of Assessment Services if he became aware of or 

suspected any type of improper conduct or other improprieties 

associated with the evaluation process or any of its components. 
4 A-3506-14T1

Plaintiff became aware of improper conduct and/or other 

improprieties associated with the exam process for the sergeant 

position, which compromised the integrity of the exam. He 

failed to notify anyone of this improper conduct, and provided 

no competent evidence to the contrary. Following an 

investigation by the Office of Inspector General, the Port 

Authority's Human Resources Department recommended that 

plaintiff be permitted to retire prior to the filing of 

disciplinary charges for failing to report the improprieties. 

On June 6, 2012, plaintiff tendered his resignation and 

retired from the Port Authority. In August 2012, he served a 

notice of claim on the Port Authority, alleging violations of 

the New York Whistleblower Law (NYWL), N.Y. Lab. Law § 740, and 

the New York Civil Service Law. N.Y. Civ. Serv. Law § 75(b).

On May 15, 2013, plaintiff filed a complaint against 

defendants in the Superior Court of New Jersey, alleging 

retaliation and civil conspiracy in violation of CEPA. 

Plaintiff sought injunctive relief in the form of reinstatement

and damages. Following the completion of discovery, defendants 

filed a motion for summary judgment. Defendants argued that the 

Port Authority is not subject to CEPA because it is a bi-state 

agency created pursuant to an interstate compact and did not 

expressly or impliedly consent to suit pursuant to this single-
5 A-3506-14T1

state legislation, and the NYWL is not complementary or parallel 

to CEPA. 

In response to defendants' summary judgment motion, 

plaintiff withdrew his claim for reinstatement. On appeal, 

plaintiff improperly attempts to resurrect this issue in a 

footnote in his merits brief. See Almog v. Israel Travel 

Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div.) 

(holding that legal issues raised in footnotes but not made 

under appropriate point headings as required by Rule 2:6-2(a)(5) 

will not be considered on appeal), certif. granted, 151 N.J. 463 

(1997), appeal dismissed, 152 N.J. 361 (1998). In addition, 

concessions made during a summary judgment motion foreclose a 

contrary argument on appeal. Ji v. Palmer, 333 N.J. Super. 451, 

459 (App. Div. 2000). 

The motion judge found that the Port Authority was created 

in 1921 by a bi-state compact between New York and New Jersey 

and the compact did not expressly provide for unilateral state 

action under CEPA. The judge also found that CEPA and the NYWL 

were not substantially similar so as to impliedly alter the 

compact. The judge granted summary judgment and dismissed the 

complaint with prejudice. In granting summary judgment to the 

individual defendants, the judge found that they did not take 

any independent action against plaintiff. Plaintiff improperly 
6 A-3506-14T1

challenges this ruling in a footnote. Almog, supra, 298 N.J. 

Super. at 155.

On appeal, plaintiff contends that the judge erred in 

granting summary judgment because, pursuant to the broad 

provisions of N.J.S.A. 32:1-157 and N.Y. Unconsol. Laws § 7101, 

New York and New Jersey expressly consented to suit under CEPA 

as long as venue is properly laid, a notice of claim is filed 

sixty days before suit is filed, and suit is filed within one 

year of the accrual of the cause of action. Plaintiff argues 

that because of these broad consent-to-suit statutes, the 

parallel and complementary implied consent analysis is 

inapplicable. 

We decline to address plaintiff's additional argument that 

the Port Authority is routinely subjected to suits based on 

single-state laws. Plaintiff did not raise this issue before 

the motion judge and it is not jurisdictional in nature nor does 

it substantially implicate the public interest. Zaman v. 

Felton, 219 N.J. 199, 226-27 (2014) (citation omitted). We also 

decline to consider documents included in plaintiff's appendix 

as exhibits Pa99 to Pa113. Plaintiff did not present these 

documents to the motion judge. See N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 278 (2007). In addition, the Port 

Authority's Whistleblower Protection Policy, included in 
7 A-3506-14T1

plaintiff's appendix as Pa110 to Pa113 does not apply here, as 

it was adopted after his resignation. See Port Authority

Whistleblower Protection Policy (Mar. 19, 2015), available at

http://corpinfo.panynj.gov/documents/port-authoritywhistleblower-protection-policy/. 

"[W]e review the trial court's grant of summary judgment de 

novo under the same standard as the trial court." Templo Fuente 

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016) (citation omitted). That standard compels the grant of 

summary judgment "if the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to 

any material fact challenged and that the moving party is 

entitled to a judgment or order as a matter of law." Id. at 179 

(quoting R. 4:46-2(c)). "To defeat a motion for summary 

judgment, the opponent must 'come forward with evidence that 

creates a genuine issue of material fact.'" Cortez v. Gindhart, 

435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue 

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. 

Div.), certif. denied, 211 N.J. 608 (2012)), certif. denied, 220 

N.J. 269 (2015). "[C]onclusory and self-serving assertions by 

one of the parties are insufficient to overcome the motion." 
8 A-3506-14T1

Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations 

omitted). 

If there is no genuine issue of material fact, we must then 

"decide whether the trial court correctly interpreted the law." 

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We 

review issues of law de novo and accord no deference to the 

trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J.

463, 478 (2013). "[F]or mixed questions of law and fact, [we] 

give deference . . . to the supported factual findings of the 

trial court, but review de novo the lower court's application of 

any legal rules to such factual findings." State v. Pierre, 223 

N.J. 560, 577 (2015) (citations omitted). Applying the above 

standards, we discern no reason to reverse. 

The Port Authority was created in 1921 by a bi-state 

compact entered into between the states of New York and New 

Jersey and approved by Congress. Santiago v. N.Y. & N.J. Port 

Auth., 429 N.J. Super. 150, 156 (App. Div. 2012) (quoting Brown 

v. Port Auth. Police Superior Officers Ass'n, 283 N.J. Super.

122, 130 (App. Div. 1995)), certif. denied, 214 N.J. 175 (2013). 

The 1921 compact gave the Port Authority "such additional powers 

and duties as may hereafter be delegated to or imposed upon it 

from time to time by the action of the legislature of either 
9 A-3506-14T1

state concurred in by the legislature of the other." N.J.S.A.

32:1-8; N.Y. Unconsol. Laws § 6408. 

"Prior to 1951, the Port Authority was immune from suit." 

Santiago, supra, 429 N.J. Super. at 158 (quoting Wood v. 

DIC/Underhill & Universal Builders Supply Co., 136 N.J. Super.

249, 252 (Law. Div. 1975), aff'd o.b., 144 N.J. Super. 364, 365 

(App. Div. 1976), certif. denied, 73 N.J. 65 (1977)). In 1951, 

the Port Authority's sovereign immunity was waived and the 

compact was amended to provide that "the States of New York and 

New Jersey consent to suits, actions, or proceedings of any form 

or nature at law, in equity or otherwise[.]" N.J.S.A. 32:1-157; 

N.Y. Unconsol. Laws § 7101. New York and New Jersey also 

enacted a more specific consent to suit provision for tortious 

acts by the Port Authority or its agents. N.J.S.A. 32:1-162; 

N.Y. Unconsol. Laws § 7106. However, the compact expressly

prohibits unilateral action by one state without the concurrence 

of the legislature of the other state. N.J.S.A. 32:1-8; N.Y. 

Unconsol. Laws § 6408. 

The scope of consent is expressly conditioned upon 

compliance with the notice provisions of N.J.S.A. 32:1-163; N.Y. 

Unconsol. Laws § 7107. Santiago, supra, 429 N.J. Super. at 160. 

Failure to comply with the notice requirements "withdraws the 

consent to suit, and thus, deprives the court of subject matter 
10 A-3506-14T1

jurisdiction." Ibid. (quoting Port Auth. of N.Y. and N.J. v. 

Airport Auto. Servs., Inc., 396 N.J. Super. 427, 430 (App. Div. 

2007)). Defendants do not assert that plaintiff failed to 

comply with the notice requirements.

"The Port Authority is not the agency of a single state but 

rather a public corporate instrumentality of New Jersey and New 

York." Bunk v. Port Auth. of N.Y. & N.J., 144 N.J. 176, 184 

(1995). Neither state may unilaterally impose additional 

duties, powers, or responsibilities on the Port Authority. 

Ibid. (citations omitted). The laws of one state cannot be 

applied to the Port Authority without the other state's consent. 

hip (Heightened Independence & Progress), Inc. v. Port Auth. of 

N.Y. & N.J., 693 F.3d 345, 358 (3d Cir. 2012); King v. Port 

Auth. of N.Y. & N.J., 909 F. Supp. 938, 945 (D.N.J. 1995), 

aff'd, 106 F.3d 385 (3d Cir. 1996); see also Hess v. Port Auth. 

Trans-Hudson Corp., 513 U.S. 30, 42, 115 S. Ct. 394, 402, 130 L. 

Ed. 2d 245, 257 (1994) (holding that "bistate entities created

by compact . . . are not subject to the unilateral control of

any one of the States that compose the federal system"). "[T]he

unilateral imposition of additional duties on the authority 

. . . is impermissible absent express authorization in the 

compact or joint legislation by the two creator states." 
11 A-3506-14T1

Ballinger v. Del. River Port. Auth., 172 N.J. 586, 594 (2002)

(citations omitted).

"Nonetheless, [t]he corollary of the proposition that 

neither state may unilaterally impose its legislative will on 

the bi-state agency is that the agency may be subject to 

complementary or parallel state legislation[.]" Santiago, 

supra, 429 N.J. Super. at 157 (citations omitted). "Under the 

'complementary or parallel legislation' principle, one compact 

state's [law] can be applied to the bi-state agency if it is 

'substantially similar' to an enactment of the other state." 

Ibid. (quoting Ballinger, supra, 172 N.J. at 594). If the

states do not have complementary legislation, the court must

determine whether the bi-state agency impliedly consented to

unilateral state regulation. Ballinger v. Del. River Port.

Auth., 311 N.J. Super. 317, 324 (App. Div. 1998) (citation

omitted), aff'd, 172 N.J. 586 (2002). The complementary or 

parallel legislation analysis does not apply to plaintiff's 

common law wrongful termination claims, as New York has no 

common law cause of action for wrongful termination. See Hassan 

v. Marriot Corp., 243 A.D.2d 406, 407 (N.Y. App. Div. 1st Dept. 

1997). Thus, we focus on plaintiff's CEPA claim.

Neither the 1921 compact nor the 1951 amendments expressly

provide for application of CEPA against the Port Authority. To
12 A-3506-14T1

the contrary, the compact expressly prohibits unilateral action 

without the concurrence of the sister state. N.J.S.A. 32:1-8; 

N.Y. Unconsol. Laws § 6408. Nonetheless, we must determine

whether CEPA is substantially similar to the NYWL so as to alter

the compact to allow application of CEPA against the Port

Authority. 

"In order to be deemed substantially similar, the two laws

at issue must 'evidence some showing of agreement.' In other

words, the New Jersey and [New York] legislatures must 'have

adopted a substantially similar policy' that is apparent in

their respective statutes." Ballinger, supra, 172 N.J. at 600

(quoting Int'l Union of Operating Engr's, Local 68 v. Del. River

& Bay Auth., 147 N.J. 433, 445, 447 (1997)). Factors to be

considered in determining whether laws are substantially similar

include: (1) the scope of the comparative laws; (2) the filing

limitations period; (3) the types of remedies and damages

available; and (4) the right to trial by jury. See Ibid.

While CEPA and the NYWL have a one-year statute of 

limitations, see N.J.S.A. 34:19-5; N.Y. Consol. Laws 

§ 740(4)(a), they are significantly dissimilar in scope. Under

CEPA, New Jersey employees are protected from retaliatory 

actions if they disclose or threaten to disclose any activity, 

policy, or practice that they reasonably believe violated a 
13 A-3506-14T1

rule, law, or regulation, and need not prove an actual violation 

of the law or clear mandate of public policy in order to 

rpevail. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Under 

the NYWL, New York employees are only protected if they disclose 

or threaten to disclose any activity, policy, or practice that 

they reasonably believe violates a law, rule, or regulation 

which "creates and presents a substantial and specific danger to 

the public health or safety, or which constitutes health care 

fraud[.]" N.Y. Lab. Law § 740(2)(a); see also Bordell v. Gen. 

Elec. Co., 208 A.D.2d 219, 221 (N.Y. App. Div. 3d Dept. 1995),

aff'd, 88 N.Y.2d 869 (N.Y. 1996). Notably, plaintiff does not 

argue or present a claim under the NYWL that his alleged 

disclosure of improper conduct or other improprieties associated 

with the evaluation and exam process for the sergeant position 

constituted a "substantial threat to public safety." In any 

event, unlike the NYWL, CEPA does not require proof of an actual 

and substantial present danger to the public health or safety. 

Compare Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169, 176-

78 (N.Y. App. Div. 2d Dept. 1989) (discussing requirement that

action must harm public safety), with Abbamont v. Piscataway

Twp. Bd. of Educ., 138 N.J. 405, 429-30 (1994) (finding that

deterrence may be a proper basis for bringing a CEPA claim). 

This difference would substantially extend CEPA protection to a 
14 A-3506-14T1

much broader class of employees than the NYWL. It, therefore, 

constitutes an impermissible unilateral expansion of the Port 

Authority's liability. 

CEPA and the NYWL are also significantly dissimilar with

respect to the types of remedies and damages available. CEPA 

permits recovery of punitive damages, whereas the NYWL does not. 

Compare N.J.S.A. 34:19-5 and -13, with N.Y. Lab. Law § 740(5); 

compare also Longo v. Pleasure Prod., Inc., 215 N.J. 48, 57

(2013) (noting that "existing authority indicates that CEPA 

. . . specifically permits . . . punitive damages"), with

Granser v. Box Tree S., 623 N.Y.S.2d 977, 984 (N.Y. Sup. Ct.

1994) (holding that the plaintiff was not entitled to an award 

of punitive damages if he prevailed under N.Y. Lab. Law § 740). 

CEPA also permits the assessment of civil fines against the 

employer, whereas the NYWL has no such provision. See N.J.S.A.

34:19-5(e), -13. These differences, if applied against the Port 

Authority, would constitute an impermissible unilateral 

expansion of the Port Authority's liability.

Lastly, CEPA provides for trial by jury, whereas the NYWL

does not. Compare N.J.S.A. 34:19-5, with N.Y. Lab. Law 

§ 740(5); compare also Abbamont, supra, 138 N.J. at 425-26

(noting that in amending CEPA, the Legislature provided for jury

trials), with Scaduto v. Rest. Assoc. Indus., Inc., 180 A.D.2d
15 A-3506-14T1

458, 459 (N.Y. App. Div. 1st Dept. 1992) (noting that by its

express terms, N.Y. Lab. Law § 740(5) "states that it is the

court itself which awards relief"). In sum, because CEPA and

the NYWL are not complementary or parallel, applying CEPA to the

Port Authority would impermissibly subject the agency to singlestate legislation. 

Because New York and New Jersey do not have complementary

or parallel whistleblower legislation, we must determine whether

the Port Authority impliedly consented to unilateral state

regulation under CEPA. As we stated in Santiago:

[E]ven though [the Third Circuit Court of

Appeals did] not recognize implicit

modifications of an interstate compact as

the New Jersey Supreme Court might, both

jurisdictions require evidence of mutual

intent to alter a compact and regulate the

bi-state agency, regardless of whether the

action taken by the agency is 'external' or

'internal.' 

[Santiago, supra, 429 N.J. Super. at 158 n.3

(quoting hip Heightened Independence, supra,

693 F.3d at 357-58 n.3).] 

There is no evidence that New York and New Jersey mutually

intended to consent to suit under CEPA. To the contrary, the

clear and unambiguous language in the states' legislation

creating the Port Authority and the lack of complementary and

parallel whistleblower statutes confirm that New York and New

Jersey did not mutually intend to consent to suit against the
16 A-3506-14T1

Port Authority under CEPA. Accordingly, the Port Authority is

not subject to suit under CEPA.

Affirmed.