NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0117-22
KENNETH POLI,
Plaintiff-Appellant,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Defendant-Respondent. _____________________________
Argued January 29, 2024 – Decided March 6, 2024
Before Judges Sabatino, Mawla, and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0192-21.
Theodore B. Campbell argued the cause for appellant.
Kyle J. Costa argued the cause for respondent, (Port Authority Law Department, attorneys; Kyle J. Costa, on the brief).
PER CURIAM Appellant Kenneth Poli appeals from the March 18, 2022 order denying
his motion to enforce litigant's rights, and August 5, 2022 order granting
summary judgment in favor of defendant Port Authority of New York and New
Jersey ("PANYNJ") for failure to serve a notice of claim as required by N.J.S.A.
32:1-163. Based on our review of the record and the applicable principles of
law, we affirm.
In April 2014, Poli was hired by PANYNJ. He received annual job
performance reviews conducted by his manager, Philip Finamore. Prior to 2018,
Poli's annual job performance was rated as having "met or exceeded
expectations" with corresponding numerical ratings of at least three out of a
possible five. In his annual performance review for 2018, Poli received a
numerical rating of two out of five, categorized as "below expectations." Poli
complained about his performance rating but was told the review could not be
changed.
On July 25, 2019, counsel for Poli, Theodore Campbell, Esq., sent a letter
to the PANYNJ Director of Security Operations, Michael DeGidio, Executive
Advisor to the General Counsel, Caroline Ioannou, and Chief of Human Capital,
Marylee Hannell. Campbell wrote that he was retained "to address Poli's 2018
A-0117-22 2 performance review, after he was informed . . . that there is no current policy in
place for him to dispute the performance review rating."
The letter explained "Poli . . . believe[d] his relationship with . . .
Finamore . . . may have suffered in part due to [Poli's] report to the appropriate
authority about some irregularities for [a construction project at JFK
International Airport] in July of 2017, which was subsequently investigated and
substantiated by the [PANYNJ Office of Inspector General ("OIG")] . . . ." The
letter continued, "[i]f [Poli's] reporting to the [O]IG in any way impacted his
performance review . . . [Poli's] requested transfer to a different [d]epartment
merits consideration." The letter specifically requested consideration of Poli's
"request for a review and an adjustment of his 2018 evaluation, along with [his]
request for a transfer to a different [d]epartment."
The OIG commenced an investigation of the issues raised in Campbell's
letter. On August 27, 2019, Ioannou sent an email to OIG investigative counsel
Inna Spector, and senior counsel Dyana Lee, with the subject line "Privileged &
Confidential – Litigation Hold Process – Anticipated Litigation by [Poli]." In
September 2019, Poli and Campbell met with Spector and Lee to discuss Poli's
allegations.
A-0117-22 3 On January 10, 2020, the Inspector General sent Campbell a letter
advising him the OIG investigation was complete and the OIG "determined . . .
Poli's 2018 [e]valuation was sufficiently supported by documented evidence of
his work performance and completely unrelated to his limited involvement with
the 2017 OIG investigation." The OIG "confirmed that . . . Poli was neither the
complainant in the 2017 OIG[] [i]nvestigation nor a source of any confidential
or protected information." The OIG dismissed the complaint and terminated the
investigation.
In February or March 2020, Poli was advised in his annual performance
review for 2019 he received a numerical rating of three out of five, categorized
as "met expectations."
On March 25, 2020, Poli received a copy of an August 8, 2018
memorandum summarizing the findings and conclusions of the 2017 OIG
investigation. The memorandum did not mention Poli by name, title, or other
description. The report identified PANYNJ fire chief, Thomas Wieczerak, as
the individual who requested the OIG conduct the investigation.
On November 5, 2020, Campbell sent a letter to OIG Acting Inspector
General, Michael Farbiarz, disputing the OIG's determination that Poli was not
"involve[d] as a whistleblower" in the 2017 OIG investigation because he
A-0117-22 4 provided Wieczerak with underlying information relating to one of the issues
included in the investigation. The letter requested a meeting "to discuss this
apparent contradiction in light of New Jersey's Rule[] of Professional Conduct
(3.3[]) regarding a lawyer's obligation for candor to a tribunal along with the
OIG's perspective in response to [Campbell's] observations." On November 16,
2020, Campbell sent another letter to Farbiarz reiterating his request for a
meeting. The letter closed, "[i]f you elect not to meet with us . . . I will advise
my client accordingly."
Poli contends that in December 2020, Campbell sent a letter, incorrectly
dated July 9, 2020, to the Chief Ethics and Compliance Officer, Debra Torres,
in which he summarized Poli's claim that he was a whistleblower because he
provided information to Wieczerak, who then reported the information to the
OIG. Campbell wrote, "[s]ince [I] . . . raised concerns about [the OIG's]
investigative findings and candor relative to . . . Poli's status in this matter, [he]
would like [Torres's] [d]epartment to investigate and address this issue . . . ."
The letter concluded Poli "would like an in-house resolution before resorting to
an outside [a]dministrative [j]udicial remedy."
On December 22, 2020, Campbell wrote to Hannell requesting she "clarify
immediately[] the pending nature of [Poli's] 2018 performance evaluation to a
A-0117-22 5 definitive grade pursuant to your policies. We have requested, and now
reiterate, a rating of [three] is warranted, which is in line with [Poli's] prior and
subsequent performance ratings." The letter requested Hannell's "prompt
response."
On January 13, 2021, Poli filed his complaint in this action. On March
26, 2021, he filed an amended complaint. Poli asserted causes based on
violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -
14 ("CEPA"), violation of the Pierce1 doctrine, violation of contract (Woolley2
doctrine), interference with economic advantage, the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -50 ("NJLAD"), fraud, and defamation. Poli
demanded "compensatory damages, including lost wages, punitive damages,
[and] benefits, together with interest."
On May 14, 2021, PANYNJ filed an answer to the amended complaint.
PANYNJ asserted failure to state a claim as an affirmative defense but did not
assert an affirmative defense based on failure to serve a notice of claim.
1 Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). 2 Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, modified, 101 N.J. 10, (1985). A-0117-22 6 During discovery, Poli filed a motion to compel discovery, including
production of the OIG investigation file relating to Poli's allegations, and
defendant filed a cross motion for a protective order. On October 29, 2021, the
court entered an order granting in part and denying in part both motions. The
court did not rule on defendant's privilege claims, but ruled the OIG
investigation file would be "produced with appropriate redactions per . . .
Campbell's representations today. So that would be names and identifiers and
then if there's other follow-up discovery request[s] based on that, then I'll leave
that to another day."
A dispute arose over defendant's redactions of the OIG file and Poli filed
a motion to enforce the October 29, 2021 order. On March 18, 2022, the court
denied Poli's motion because the court did not previously order disclosure of the
unredacted OIG file, as Poli alleged, and because Poli did not demonstrate
defendant's assertions of privilege lacked merit.
On June 21, 2022, defendant moved for summary judgment arguing Poli
failed to serve a notice of claim as required by N.J.S.A. 32:1-163, and Poli's
causes of action based on CEPA, NJLAD, and the Pierce doctrine could not be
asserted against defendant. Poli opposed the motion, arguing he substantially
complied with the notice of claim requirement. On August 5, 2022, the court
A-0117-22 7 heard oral argument. The same day, the court entered an order granting the
motion supported by a written opinion. On August 9, 2022, the court issued an
amended written opinion.
The court rejected Poli's argument that he substantially complied with the
notice of claim requirement. 3 Applying the standard for substantial compliance
set forth in Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001), the court found
Poli failed to demonstrate he "alert[ed] [d]efendant to any of the claims filed in
[his] amended complaint." The court also found Poli did not establish he took
a series of steps to comply with the statute, generally complied with the purpose
of the statute, or had a reasonable explanation why he did not strictly comply
with the statute. As to the fraud claim, the court additionally determined the
alleged notice was not served at least sixty days before Poli filed suit.
On appeal, Poli argues: (1) the court erred by rejecting his claim of
substantial compliance as to his "whistleblower" and "fraud" claims; (2) the
court erred by failing to consider and apply the doctrine of equitable estoppel to
3 Because Poli only addressed his CEPA, NJLAD, and fraud claims in opposition to the motion, the court deemed the motion unopposed as to all other claims. The court, however, noted Poli's "Wool[l]ey doctrine" claim also failed on the merits for failure to serve a notice of claim.
A-0117-22 8 preclude defendant from raising the notice of claim defense; and (3) the court
erred by failing to enforce the October 29, 2021 discovery order. 4
Appellate courts review the trial court's grant or denial of a motion for
summary judgment de novo, applying the same standard used by the trial court.
Samolyk v. Berthe, 251 N.J. 73 (2022); Stewart v. N.J. Tpk. Auth./Garden State
Parkway, 249 N.J. 642, 655 (2022). The court must "consider whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Pursuant to these principles and having considered the arguments raised
on appeal, we affirm substantially for the reasons set forth in the court's thorough
and well-reasoned March 18, 2022, and August 9, 2022 written opinions. We
add the following comments.
4 Poli does not address his causes of action based on the Pierce doctrine, violation of contract (Woolley Doctrine), interference with economic advantage, NJLAD, or defamation. Therefore, they are waived. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983) (holding issues not briefed beyond conclusory statements need not be addressed). Those claims, however, also fail on the merits as discussed herein.
A-0117-22 9 The court correctly analyzed and applied the doctrine of substantial
compliance. To demonstrate substantial compliance a litigant must establish:
the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim[;] and (5) a reasonable explanation why there was not a strict compliance with the statute.
[Galik, 167 N.J. at 353.]
"Establishing th[e]se elements is a heavy burden." Id. at 357. "The
substantial compliance doctrine 'operates "to prevent barring legitimate claims
due to technical defects."'" H.C. Equities, LP v. Cty. of Union, 247 N.J. 366,
386 (2021) (quoting Cnty. of Hudson v. Dep't of Corr., 208 N.J. 1, 21 (2011)).
N.J.S.A. 32:1-163 requires:
any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the Port Authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced.
The notice of claim must provide:
(1) the name and post-office address of each claimant and of [their] attorney, if any, (2) the nature of the
A-0117-22 10 claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.
[N.J.S.A. 32:1-164.]
The purpose of the statute is to provide "adequate time for investigation,
reasonable opportunity for the preparation of its defense, and reasonable
opportunity to effect a settlement before the institution of suit." Zamel v. Port
of N.Y. Auth., 56 N.J. 1, 7 (1970). In the context of a similar notice of claim
requirement under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12.3,
our Supreme Court held the
Legislature clearly envisioned that a claimant would disclose to a public entity its tort causes of action in a single document that provides clear notice of its claim, not in a series of incomplete communications that must be considered together in order to infer that a claim may be filed.
[H.C. Equities, LP, 247 N.J. at 387-88.]
"[T]he public entity [cannot be] required to analyze multiple communications
and determine whether, viewed in the aggregate, they reveal an intent to sue."
Id. at 387.
The record in this case does not demonstrate a lack of prejudice to
defendant, a series of steps taken to comply with the statute involved, general
A-0117-22 11 compliance with the purpose of the statute, or reasonable notice of petitioner's
claim, as required by Galik. 167 N.J. at 353. Poli's numerous communications
with different individuals at different times are inadequate to establish
substantial compliance. The relevant statutes require "a notice of claim" and
refer to "the notice of claim." N.J.S.A. 32:1-163, 164. As the Supreme Court
held in H.C. Equities, LP, the Legislature clearly intended the notice would be
communicated in a single comprehensive document, not in a series of
incomplete communications. 247 N.J. at 387-88.
Nowhere in any of the letters did Poli notify defendant of his intention to
file a lawsuit. Rather, the letters requested meetings to resolve his complaints
"in-house." Moreover, Poli's letters did not alert defendant to any of the claims
asserted in the amended complaint. The July 25, 2019 letter sought only "to
address Poli's 2018 performance review" and his "request for a transfer to a
different [d]epartment." The November 5, 2020 letter disputed the OIG's
determination that he was not a whistleblower and requested a meeting "to
discuss [that finding] in light of [RPC 3.3] regarding a lawyer's obligation for
candor to a tribunal along with the OIG's perspective in response to [counsel's]
observations."
A-0117-22 12 The November 16, 2020 letter reiterated Poli's request for a meeting and
stated "[i]f you elect not to meet with us . . . I will advise my client accordingly."
The first letter sent in December 2020 reiterated Poli's claim that he should be
deemed a whistleblower and stated Poli "would like an in-house resolution
before resorting to an outside [a]dministrative [j]udicial remedy." The
December 22, 2020 letter related only to Poli's request for a revision to his 2018
performance evaluation and requested a "prompt response."
These letters do not demonstrate Poli advised defendant that he intended
to assert claims based on CEPA, NJLAD, breach or violation of contract,
interference with economic advantage, the Pierce doctrine, fraud, or defamation.
In addition, the letters did not reference any of the damages sought in the
lawsuit, including compensatory damages, lost wages, lost benefits, or punitive
damages.5 In fact, the only demands addressed in his letters—revision of his
2018 performance evaluation and transfer to a different department—are not
even included as demands in the amended complaint.
Finally, Poli failed to provide a reasonable explanation why there was not
a strict compliance with the statute as required by Galik. 167 N.J. at 353. Poli
5 During argument before us, counsel stated Poli is not making a claim for lost wages. That claim is, however, asserted in the amended complaint. A-0117-22 13 essentially contends he did not strictly comply with the statute because he was
not aware of the notice requirement. Generally, "ignorance of the law . . . will
not excuse failure to meet the filing deadline . . . ." Hyman Zamft & Manard,
LLC v. Cornell, 309 N.J. Super. 586, 593 (App. Div. 1998). If an attorney's
negligence "is the sole basis for the late notice, the claim against the public
entity will be lost." Bayer v. Twp. of Union, 414 N.J. Super. 238, 259 (App.
Div. 2010).
Poli's reliance on the August 27, 2019 email Ioannou sent to Spector and
Lee, with the subject line "Privileged & Confidential—Litigation Hold
Process—Anticipated Litigation by [Poli]," does not lead us to a different result.
As we have discussed at length, the record does not support Poli's substantial
compliance argument. The fact that defendant initiated a litigation hold process
after receiving Poli's July 25, 2019, letter does not establish Poli substantially
complied with the notice of claim requirement. The doctrine of substantial
compliance requires much more than merely raising the possibility of some
unspecified future litigation. We are satisfied the court determined correctly
Poli failed to meet the heavy burden of establishing substantial compliance with
the notice of claim requirement.
A-0117-22 14 Poli's argument that defendant waived the notice of claim defense by
failing to assert it as an affirmative defense lacks merit. While it might be a
preferable practice to assert failure to serve a notice of claim as an affirmative
defense in cases such as this, omitting it will not result in waiver. In Port Auth.
of New York & New Jersey v. Airport Auto Services, Inc., 396 N.J. Super. 427,
430 (2007), we held that "failure to comply with the notice of claim requirement
[set forth in N.J.S.A. 32:1-163] withdraws the consent to suit, and thus, deprives
the court of subject matter jurisdiction." (internal quotation omitted) (quoting
Port Auth. of N.Y. & N.J. v. Barry, 833 N.Y.S.2d 839, 840 (N.Y. Sup. App.
Term 2007)). Lack of subject matter jurisdiction "may be raised at any time,"
and cannot be waived. Lall v. Shivani, 448 N.J. Super. 38, 48 (App. Div. 2016).
Because failure to serve a notice of claim deprives the court of subject matter
jurisdiction, defendant did not waive the defense by failing to assert it as an
affirmative defense.
Poli's argument that defendant is equitably estopped from asserting the
notice of claim defense is not persuasive. The doctrine of "[e]quitable estoppel
is 'rarely invoked against a governmental entity.'" Meyers v. State Health
Benefits Comm'n, 256 N.J. 94, 100 (2023) (quoting Middletown Twp.
Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J.
A-0117-22 15 361, 367 (2000)). However, "the doctrine of estoppel may be invoked against a
municipality to prevent manifest wrong and injustice." Ibid. (quoting Gruber
v. Mayor & Twp. Comm. of Raritan Twp., 39 N.J. 1, 14 (1962)).
Poli contends defendant should be estopped from asserting the notice of
claim defense because defendant did not alert him to the notice requirement by
asserting it as an affirmative defense, and affirmatively concealed the
requirement by not placing it on its website. As discussed previously, defendant
was not required to assert lack of subject matter jurisdiction as an affirmative
defense. Poli's claim that defendant concealed the requirements of the statutes
by not placing the statutes on its website is entirely without merit. Statutes are
publicly available and cannot be concealed. Poli failed to demonstrate a
manifest wrong or injustice that must be prevented. The doctrine of equitable
estoppel, therefore, is inapplicable.
We are not convinced the court erred by failing to compel the production
of documents in response to Poli's motion to enforce litigant's rights. We
"generally defer to a trial court's disposition of discovery matters unless the
court has abused its discretion or its determination is based on a mistaken
understanding of the applicable law." State v. Brown, 236 N.J. 497, 521 (2019)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).
A-0117-22 16 Here, Poli moved to enforce the court's October 29, 2021 order and
compel the production of certain documents deemed privileged or otherwise
protected from discovery by defendant. On March 18, 2022, in a comprehensive
written opinion, the court found Poli misconstrued its October 29, 2021 order,
and determined Poli failed to show the information withheld from production
should be produced. We discern no reason to conclude the court abused its
discretion by denying Poli's motion and will not disturb the March 18, 2022
order on appeal.
To the extent we have not otherwise addressed appellant's arguments, they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-0117-22 17