Sullivan v. Port Auth. of N.Y. & N.J.

157 A.3d 451, 449 N.J. Super. 276, 2017 WL 993262, 2017 N.J. Super. LEXIS 33
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 15, 2017
DocketDocket No. A-3506-14T1.
StatusPublished
Cited by24 cases

This text of 157 A.3d 451 (Sullivan v. Port Auth. of N.Y. & N.J.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Port Auth. of N.Y. & N.J., 157 A.3d 451, 449 N.J. Super. 276, 2017 WL 993262, 2017 N.J. Super. LEXIS 33 (N.J. Ct. App. 2017).

Opinion

SIMONELLI, J.A.D.

*279Plaintiff 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 unverified allegations in his complaint, as he does in his merits brief on appeal. SeeR. 4:46-5(a) (prohibiting an adverse party from relying on the mere allegations of his pleading to oppose summary judgment). Plaintiff's *280reliance 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, 170 A. 2d 505 (App. Div. 1961). *454We 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.

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 *281conspiracy 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-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, 689 A .2d 158 (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, 700 A. 2d 876 (1997), appeal dismissed , 152 N.J. 361, 704 A. 2d 1297 (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, 755 A .2d 1221 (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 *455against plaintiff. Plaintiff improperly challenges this ruling in a footnote. Almog , supra , 298 N.J.Super.

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Bluebook (online)
157 A.3d 451, 449 N.J. Super. 276, 2017 WL 993262, 2017 N.J. Super. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-port-auth-of-ny-nj-njsuperctappdiv-2017.