Santiago v. New York & New Jersey Port Authority, A-5773-10T1; Appellate Division; opinion by Messano, P.J.A.D.; decided and approved for publication December 5, 2012. Before Judges Messano, Lihotz and Ostrer. On appeal from the Law Division, Hudson County, L-5545-10. [Sat below: Judge Suarez.] DDS No. 07-2-8362 [18 pp.]

Enid Santiago, a probationary police officer, filed a complaint against the Port Authority of New York and New Jersey and one of its employees after her employment was terminated one day before the end of her probationary period. She alleged violations of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; the New Jersey Law Against Discrimination (LAD), 10:5-1 to -49; common-law claims for abuse of process, interference with contractual rights, and defamation; and claims for violations under the state constitution.

Relying on N.J.S.A. 32:1-163, defendants moved to dismiss the complaint, arguing that because plaintiff admittedly failed to serve any notice of claim prior to filing her complaint, the court lacked subject-matter jurisdiction. The motion judge agreed and dismissed the complaint.

On appeal, plaintiff argues that because the LAD and CEPA are substantially similar to legislation enacted by New York, the Port Authority has implicitly consented to being sued for such claims and that the CRA applies to the Port Authority because application would not interfere with the Port Authority’s operation or mission. Further, because New Jersey does not impose a notice requirement before filing a complaint alleging causes of action under these statutes, the notice requirement of 32:1-163 has been impliedly repealed and the court erred in concluding that it lacked subject-matter jurisdiction because of plaintiff’s failure to comply with 32:1-163.

Held: The Port Authority’s waiver of sovereign immunity and consent to suit is expressly conditioned on the notice requirement in N.J.S.A. 32:1-163. There has been no implied repeal of the notice requirement for suits involving the LAD, CEPA or the CRA. Plaintiff’s failure to comply with the notice requirement deprives the court of subject-matter jurisdiction.

The panel says the Port Authority is a public corporate instrumentality of New Jersey and New York. Neither state may unilaterally impose additional duties, powers or responsibility on it. However, it may be subject to complementary or parallel state legislation that does not intrude on its mission. Thus, one state’s statute can be applied to the bi-state agency if it is “substantially similar” to an enactment of the other state.

The panel says it need not decide whether the LAD or CEPA are substantially similar to New York’s legislation nor whether the CRA applies to the Port Authority because the statute does not intrude on the mission of the agency. Instead, assuming arguendo that these statutes do apply, the panel considers the necessary corollary to plaintiff’s argument that because these statutes apply to the Port Authority, the notice requirement of 32:1-163 has been impliedly repealed because New Jersey does not require any presuit notification under the LAD, CEPA or the CRA.

N.J.S.A. 32:1-162 provides that New York and New Jersey consent to liability on the part of the Port Authority in suits for tortious acts committed by it and its agents to the same extent as though it were a private corporation. However, this consent is expressly conditioned on compliance with the notice provision of 32:1-163. The requirement is jurisdictional.

The panel says New York and New Jersey courts have expansively construed this limitation on the Port Authority’s consent to suits for money damages, holding that failure to comply with the notice requirement withdraws the consent to suit, and, thus, deprives the court of subject-matter jurisdiction. Except for cases applying the doctrine of substantial compliance, plaintiff has not cited a single case in which a complaint was allowed to proceed in derogation of the notice provision in 32:1-163. Plaintiff does not argue that she substantially complied with 32:1-163.

Rather, she contends that because the notice provisions of the Tort Claims Act (TCA), 59:1-1 to 12-3, do not apply to suits brought under the LAD, CEPA or the CRA, the panel should conclude that the notice provision of 32:1-163 has been impliedly repealed whenever a complaint implicating those statutes is filed against the Port Authority. The panel rejects this argument for several reasons.

First, courts have long recognized that the TCA does not apply to the Port Authority. The panel says it is hard pressed to accept plaintiff’s argument by analogy to a statute that is inapplicable.

Second, those cases cited by plaintiff that recognized the complementary and parallel legislation doctrine as impliedly amending the compact did so only with respect to the substantive nature of the claims. None considered implied repeal or modification of conditions precedent to establishing subject-matter jurisdiction for the suit.

Third, modification of a statute by implication is disfavored.

Lastly, the panel says that as a court of intermediate appellate jurisdiction, it would be unwise for it to conclude that the notice provision of 32:1-163 does not apply to plaintiff’s statutory causes of action given the significant implications of such a holding.

The dismissal of plaintiff’s complaint because she failed to comply with the notice provisions of 32:1-163 is affirmed.

For appellant — Louis A. Zayas (Zayas and Carolyn Corrado on the brief). For respondents — Cheryl Alterman (Margaret Taylor Finucane (Port Authority of N.Y. and N.J.), New Jersey Solicitor; Alterman and Jonathan P. Meinen on the brief).