NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A
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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 Supe rior 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 DIVISIONA
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- 14T1 2 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 t he New Jersey Consci entious 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' stat ement, nor did he file a responding statement of additional facts , as required by R ule 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 theA
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- 14T1 3 unverified allegations in his complaint, as he does in his merits brief on appeal. See R. 4:46

- 5(a) (prohibiting an adverse p arty 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).

W e derive the following facts from the evidence defendants submitted in support of their motion. From February 9, 1987 , to June 6, 2012, p laintiff was employed as a pol ice 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 proce ss 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 Speciali st 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.A
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- 14T1 4 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 impro prieties. On June 6, 2012, p laintiff tendered hi s 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. La w § 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 reli ef in the form of reinstatement and damages. F ollowing 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 impli edly consent to suit pursuant to this single

-A
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- 14T1 5 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 at tempts to resurrect this issue in a
footnote in his merits brief. See Almo g 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 require d 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).

T he 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 j udge 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 judg e found that they did not take any independent action against plaintiff. Plaintiff improperlyA
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- 14T1 6 challenges this ruling in a footnote. Almo g , supra , 298 N.J. Super. at 155.

On appeal, plaintiff contends that the judge erred in granting summary judgment beca use, 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 sui t 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 additiona l 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. Zama n v.
Felton , 219 N.J. 199, 226

- 27 (2014) (c itation 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 inA
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- 14T1 7 plaintiff's appendix as Pa110 to Pa 113 does not apply here, as it was adopted after his resignation. See Port Authority
Whistle blowe r Protection Policy (Mar. 19, 2015), available at http://corpinfo.panynj.gov/documents/port

- authority

whistleblower

- 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, 1 99 (2016) (citation omitted). That standard compels the grant of

su mmar y 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 o r order as a matter of law." I d. 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. D iv. 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 insuffici ent to overcome the motion."A
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- 14T1 8 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 q uestions 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, 5 77 (2015) (citations o mitted). 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 st ates of New York and N ew 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 eitherA
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- 14T1 9 state concurred in by the legislature of the other ." N.J.S.A.
3 2:1

- 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, action s , or p roceedings 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, t he 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. Law s § 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 matterA
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- 14T1 10 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
d uties, 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 . hi p (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) ; s ee also Hess v. Port Auth.

Trans
- Huds on 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."A
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- 14T1 11 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. a t 157 (citations omitted). "Under the 'comple mentary 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 19 51 amendments expressly provide for application of CEPA against the Port Authority . ToA
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- 14T1 12 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 ' evid ence some showing of agreement.' In other words, the New Jersey and [New York] legislatures must ' ha ve adopted a substan tially 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)). F actors to be
consi dered 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 aA
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- 14T1 13 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. McDevi tt , 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 s ubstantial 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
dis closure of improper conduct or other improprieties associated with the evaluation and exam process for the sergeant position constituted a "substantial threat to publi c safety." In any event, u nlike 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 aA
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- 14T1 14 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. CE PA 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 wa s 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 P ort 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. 2dA
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- 14T1 15 458, 459 ( N.Y. App. Div. 1st Dep t . 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 single

state 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 whet her the action taken by the agen cy 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). ]
Th ere 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 state s' legislation creating the Port Authority and the lack of complementary and parallel whistleblower statutes confirm that New York and New Jersey did not mutuall y intend to consent to suit against theA
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- 14T1 16 Po rt Authority under CEPA. Accordingly, the Port Authority is

not subject to suit under CEPA.
Affirmed.