                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3506-14T1


BRIAN SULLIVAN,
                                          APPROVED FOR PUBLICATION

     Plaintiff-Appellant,                      March 15, 2017

v.                                          APPELLATE DIVISION

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 March 15, 2017

         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).
            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




                                           2                                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.




                                          3                                    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-




                                             4                                        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




                                          5                                   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




                                         6                               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-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, 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."




                                          7                                     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




                                       8                               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




                                             9                                 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."




                                            10                                   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




                                            11                                     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




                                              12                                       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




                                          13                                  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




                                          14                                    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 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 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




                                       15                                A-3506-14T1
Port Authority under CEPA.   Accordingly, the Port Authority is

not subject to suit under CEPA.

    Affirmed.




                                  16                   A-3506-14T1
