The opinion of the court was delivered by: PIERRE N. LEVAL
PIERRE N. LEVAL, U.S.D.J.
Defendant James Clarke moves for summary judgment dismissing the complaint as to himself only.
Plaintiff sues for damages for severe physical injuries, including the loss of a leg, suffered when he was struck by a car while performing work on the Van Wyck Expressway under a contract between his employer and the State of New York. The contract was to install a barrier and netting under an overpass. This work necessitated closing off two lanes of the Van Wyck, and plaintiff was engaged in that portion of the job when he was struck by the car. Defendant Clarke is an employee of the New York State Department of Transportation and was working at the site as the Senior Engineering Technician, responsible for ensuring that the lane closing was performed safely. Plaintiff sues Clarke both individually, (Pl. Oppos. Mem. at 9) and as "an agent, servant or employee of the State of New York." ( Complaint p. 2 P 4.) He claims that Clarke was careless, reckless and negligent in permitting the creation of a dangerous work area.
Clarke contends that the suit against him is barred by the Eleventh Amendment, and that in addition, the suit states no cause of action against Clarke because Clarke owed no duty to the plaintiff.
A. Eleventh Amendment and Sovereign Immunity
1. Clarke in his official capacity
Mohammed sues Clarke both in Clarke's official capacity and his personal or individual capacity. A suit against an employee in his official capacity is one that, although designated as asserting the liability of the state employee, in fact seeks through such a judgment to compel payment of damages from the State's treasury. Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988). Such a suit in federal court is barred by the Eleventh Amendment because, regardless of the names in the caption, the State is the real party in interest in the suit.
The nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.
Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 350, 89 L. Ed. 389 (1945); see also Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 1355-56, 39 L. Ed. 2d 662 (1974); Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988). When a suit "seeks to impose a liability which must be paid from public funds in the state treasury," Edelman, 94 S. Ct. at 1356, then the state is the real party in interest and the suit is barred by the Eleventh Amendment.
To the extent that Mohammed brings this action against Clarke as an "agent, servant or employee of the State of New York," so that the State would be liable for a judgment against Clarke, the State is the real party in interest and the action is barred in this forum by the Eleventh Amendment. Edelman, 94 S. Ct. at 1355-56; Farid, 850 F.2d at 921.
Plaintiff argues, without citing any authority, that the Eleventh Amendment is not a barrier to his suit because private insurance carried by the State, rather than the State's treasury, would pay any judgment against Clarke. (Def. Oppos. Brief at 10.) This argument has been considered and rejected by several courts for two reasons. First a waiver of sovereign immunity must be clear and express, Edelman, 94 S. Ct. at 1360-61, and a state's purchase of insurance does not meet that test. Markowitz v. United States and State of Arizona, 650 F.2d 205, 206 (9th Cir. 1981). Second, payments made by insurance companies ultimately come from policyholders' premiums; thus a judgment would in fact be funded from the state treasury. Id., Plaintiffs' ...