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Enid Santiago v. New York & New Jersey

December 5, 2012

ENID SANTIAGO, PLAINTIFF-APPELLANT,
v.
NEW YORK & NEW JERSEY PORT AUTHORITY, TUNNEL & BRIDGE AGENT GREGORY NOA, INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5545-10.

The opinion of the court was delivered by: Carmen Messano, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 25, 2012

Before Judges Messano, Lihotz and Ostrer.

The opinion of the court was delivered by CARMEN MESSANO, P.J.A.D.

On October 12, 2010, plaintiff Enid Santiago filed a complaint against defendant the Port Authority of New York and New Jersey (the Port Authority), and one of its employees, Tunnel and Bridge Agent Gregory Noa. Plaintiff 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), N.J.S.A. 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. As to Noa, the complaint indicated he was "sued in his individual capacity for the purpose of effecting the compensatory and punitive damages demanded by . . . [p]laintiff . . . ."

On April 12, 2011, prior to filing an answer and relying upon N.J.S.A. 32:1-163, defendants moved to dismiss the complaint. That statute provides in relevant part:

[A]ny 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 . . . 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 . . . the plaintiff . . . at least sixty days before such suit, action or proceeding is commenced. [Ibid. (emphasis added).]

Defendants contended 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 entered an order dismissing the complaint "because of [p]laintiff's failure to comply with the statutory prerequisites set forth in N.J.S.A. 32:1-163 and N.J.S.A. 32:1-164."*fn1

On appeal, plaintiff argues that the judge erred as a matter of law because the Port Authority "has implicitly consented to New Jersey's jurisdiction" since both New Jersey and New York have "enact[ed] similar legislation to eradic[ate] unlawful employment practices in the workplace," and "no notice of claim was required to be filed before . . . filing . . . suit." Additionally, plaintiff contends that her constitutional claims, cognizable under New Jersey's Civil Rights Act, N.J.S.A. 10:5-1 to -2 (the CRA), "appl[y] to the Port Authority."*fn2 We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

To place the issues in proper context, we recite some of the allegations contained in plaintiff's complaint, which, for purposes of our review, we accept as true. See Union Ink Co. v. AT&T Corp., 352 N.J. Super. 617, 627 (App. Div.) ("For the limited purposes of the underlying motion to dismiss . . . for lack of jurisdiction over the subject matter, . . . we must accept as true the allegations of the complaint."), certif. denied, 174 N.J. 547 (2002).

Plaintiff was hired by the Port Authority on October 17, 2008, as a recruit for its police academy. On April 13, 2009, she was sworn in as a police officer. Pursuant to Port Authority policy, plaintiff began to serve a one-year probationary period after which her status would become "permanent." As a permanent police officer, she ...


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