Damage Claims Against Port Authority Barred Because Plaintiff Had Not Given Pre-Suit Notice

Santiago v. New York & New Jersey Port Authority, 429 N.J. Super. 150 (App. Div. 2012).  N.J.S.A. 32:1-163 states that “in the case of any suit, action or proceeding for the recovery or payment of money [against the Port Authority of New York and New Jersey], 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.”  Plaintiff in this employment discrimination case did not serve that required pre-suit notice.  The Port Authority won dismissal for lack of subject matter jurisdiction, since the notice is mandatory in order for a court to have power to hear a damages case against the Port Authority.  Plaintiff appealed, but the Appellate Division, reviewing the purely legal issue of subject matter jurisdiction de novo, affirmed in an opinion by Judge Messano.

Plaintiff’s main argument was that the same statute that contained the pre-suit notice requirement also provided, in N.J.S.A. 32:1-162, that the Port Authority consented to suit.  But Judge Messano observed that this consent “is expressly conditioned upon compliance with the notice provisions of N.J.S.A. 32:1-163.”  The panel cited prior New Jersey and New York cases that supported the conclusion that “failure to comply with the notice requirement ‘withdraws the consent to suit, and thus, deprives the court of subject matter jurisdiction.'”  And, although the doctrine of substantial compliance applies in this context, plaintiff had made no effort to give notice and so could not avail herself of the substantial compliance doctrine.

Plaintiff also argued that because the pre-suit notice provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, do not apply to the statutory claims that she presented, the notice requirement of N.J.S.A. 32:1-163 was impliedly repealed when a complaint implicating those statutes is filed against the Port Authority.  Judge Messano did not agree.  The Tort Claims Act does not apply to the Port Authority, so the panel was “hard-pressed to accept plaintiff’s argument by analogy to a statute that is inapplicable from the start.”  Moreover, under fundamental principles of statutory interpretation, implied repealers are disfavored, and plaintiff had not overcome that presumption.  Finally, as an intermediate appellate court, the panel found it “unwise for us to conclude that the notice provisions of N.J.S.A. 32:1-163 do not apply to plaintiff’s statutory causes of action given the significant implications of such a holding.” 

In short, the panel ruled that N.J.S.A. 32:1-163 means what it says.  Plaintiff was creative in trying to get around that statute, but her efforts did not succeed.