Friedman v. Schmalix

The following papers have been considered by the Court on this motion submitted November 19, 2018Papers  NumberedNotice of Motion w/ annexed supporting papers          1Additional Exhibits to Motion           2Affirmation in Opposition w/ annexed supporting papers           3Plaintiff’s Memorandum of Law in Opposition                4Reply Affirmation               5  By Short Form Order of this court dated April 3, 2017 plaintiffs Elaine Friedman and Russell Friedman were awarded a default judgment against defendant Michael Schmalix a/k/a Michael Schmalix II (“Schmalix”). By this motion defendants John Comerford (“Comerford”) and John Comerford Plumbing & Heating, Inc., (“Comerford, Inc.”), move pursuant to CPLR 3212 for summary judgment dismissing the complaint against them. The motion is decided as follows.BackgroundComerford is the principal of Comerford, Inc., a company that has provided residential plumbing services in Nassau County since its creation in 2012. Comerford met defaulting co-defendant Schmalix while they were both working for plumbing company Henry Myers Plumbing and Heating Inc. (“Myers Inc.”), from 2007 through 2012. After leaving Myers Inc. to form his own company, Comerford hired Schmalix as a second plumber to assist him with a number of contract jobs from April 2014 through December 2014. The last job they did together is the subject of the instant action.On or about November 25, 2014, defendants performed certain plumbing services in the first and second floor bathrooms of plaintiffs’ residence. Neither bathroom is accessible by or through plaintiffs’ master bedroom (see Complaint at12). According to the complaint, at one point during the performance of said services, plaintiff Elaine Friedman observed Schmalix exiting the master bedroom. A few days later, plaintiff Russell Friedman discovered a bottle of Xanax missing from the master bathroom, which is only accessible from the master bedroom. After inventorying the contents of their master bedroom, plaintiffs found that a Rolex watch, kept by Mrs. Friedman in a jewelry box in the room and valued at $15,000, was also missing (id. at