Fausto Prattico, Plaintiff, v. LLC MICHAEL GUROWSKI TAMMY GUROWSKI MARISSA BENETT US RETIREMENT PARTNERS (2026)

Plaintiff Fausto Prattico (hereinafter "plaintiff') initiated this action in 2013 against Defendants Titan Insurance and Employee Benefits Agency, LLC (hereinafter "Titan"), Michael Gurowski (hereinafter "Gurowski"), Tammy Gurowski, Marissa Benett, and US Retirement partners alleging the defendants fabricated a criminal charge against the plaintiff to prevent plaintiff from competing with the defendants in the insurance brokerage field. As relevant herein, in a decision and order dated July 7, 2025 the Court partially granted the plaintiff's combined motion for leave to reargue or renew, and vacated its prior determination that the plaintiff's economic damages claim did not include a loss of the "G&W account".¹ Subsequent to that decision and order the Court granted limited discovery to the defendants to depose G&W employees.

The defendants now move for leave to renew. The Court grants the motion for leave to renew, and upon consideration, adheres to its previous determination.²

Prior Proceedings

This action was initiated by the plaintiff in November of 2013, alleging the defendants maliciously prosecuted him. Plaintiff is seeking economic damages relating to lost income, payment of legal fees, and non-economic damages relating to "mental anguish", "injury to health, well-being, and feelings", "emotional trauma, anxiety, sleep apnea, nightmares, depression, severe weight gain, mental anguish, and a sense of despair" and injury to reputation. The plaintiff also seeks punitive damages.

On January 7, 2020, the Court entered an order granting summary judgment to the plaintiff on his malicious prosecution cause of action due to discovery violations committed by the defendants and ordering a trial on damages.³ The Court dismissed the remaining causes of action against the defendants herein. The decision and order was affirmed on appeal to the Appellate Division, Fourth Department. (Prattico v. City of Rochester, 197 AD3d 882 [4th Dept. 2021].)

On April 23, 2025, the Court issued a decision and order partially granting the defendants' motion for summary judgment and dismissing all claimed damages relating to twenty-seven (27) business accounts that had been maintained by the plaintiff and which he claimed losses due to the defendants' misconduct. Included in the Court's order was decretal language dismissing claimed economic losses from the "G&W account". As noted above, in a subsequent decision and order the Court granted the plaintiff's motion for leave to renew and vacated that portion of the April 23rd decision and order relating to the G&W account.

Relevant Legal Standards on Motions for Leave to Renew

CPLR Rule 2221 states that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and ...shall contain reasonable justification for the failure to present such facts on the prior motion". (CPLR Rule 2221.) "The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" (Deutsche Bank Trust Co. v. Ghaness, 100 AD3d 585, 586, 953 N.Y.S.2d 301; see Carmike Holding I, LLC v. Smith, 180 AD3d 744, 747, 120 N.Y.S.3d 141). 'However, in either instance, a 'reasonable justification' for the failure to present such facts on the original motion must be presented' (Deutsche Bank Trust Co. v. Ghaness, 100 AD3d at 586, 953 N.Y.S.2d 301, quoting CPLR 2221[e][3]; see Carmike Holding I, LLC v. Smith, 180 AD3d at 747, 120 N.Y.S.3d 141). 'A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' (Worrell v. Parkway Estates, LLC, 43 AD3d 436, 437, 840 N.Y.S.2d 817; see Tylman v. Yanoff, 186 AD3d 647, 648, 126 N.Y.S.3d 910)." (Bank of Am., N.A. v. Mancia-Parone, 192 AD3d 739 [2nd Dept. 2021].)

With these principles in mind, the Court has reviewed the defendants' motion for leave to renew.

Motion for Leave to Renew

Relevant Law

""Generally, a plaintiff in a malicious prosecution action may recover damages for the direct, natural and proximate results of the criminal prosecution, including those for suffering arrest and imprisonment, injury to reputation and character, injury to health, well-being and feelings, and counsel fees and expenses in defending the criminal prosecution" (Burlett v County of Saratoga, 111 AD2d 426, 427 [1985]; see Loeb v Teitelbaum, 77 AD2d 92, 105 [1980], order amended 80 AD2d 838 [1981]; PJI 3:50)." (Putnam v. Cnty. of Steuben, 61 AD3d 1369, 1371 [4th Dept. 2009], emphasis supplied.)⁴

At issue herein is whether G&W's knowledge of the plaintiff's criminal charge was proximately related to G&W's decision to cancel its contract with Lawley and the plaintiff. Plaintiff argues that it was a factor in G&W's decision to terminate the contract; the defendants argue that G&W's decision was not related to their misconduct.

It is not sufficient that the plaintiff establish that G&W's decision was based in part upon its knowledge of the plaintiff's criminal charge for the plaintiff to obtain damages. Instead, to ultimately prevail on this issue, the plaintiff must establish that G&W's decision was substantially informed by its knowledge of the plaintiff's (false) criminal charge. Should the proof establish that G&W's decision was made due to other significant factors, even if the plaintiff's criminal charge played a role, the defendants would not be liable for the loss of the G&W account.

The reference in caselaw to damages proximately related to the underlying criminal prosecution is intended to limit damages to claims that are not attenuated from the malicious prosecution.⁵ ""It is fundamental to our common-law system that one may seek redress for every substantial wrong. 'The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his [or her] misconduct' " (Battalla v. State of New York, 10 NY2d 237, 240, 219 N.Y.S.2d 34, 176 N.E.2d 729; see Derby v. Prewitt, 12 NY2d 100, 105—106, 236 N.Y.S.2d 953, 187 N.E.2d 556)." (Dombrowski v. Bulson, 79 AD3d 1587, 1589 [4th Dept. 2010] rev'd, 19 NY3d 347 [2012].) Although the term "proximate" is not defined further in those cases discussing damages in malicious prosecution cases, analogous concepts refine its application.⁶

For instance, it is well settled that in negligence cases, the act of a tortfeasor is the "proximate cause" of the plaintiff's injury when it is a "substantial cause of the events which produced the injury". (Hain v. Jamison, 28 NY3d 524, 528-529 [2016] citing Mazella v. Beals, 27 NY3d 694, 706 [2016] quoting Derdiarian v. Feliz Contr. Corp., 51 NY2d 308 [1980].)⁷

Similarly, in tortious interference with contractual relations, courts have held that the wrongful conduct of the defendants must be a proximate cause of the damages, defined as "but for" the defendants' interference, the underlying contractual relationship would have continued or would have been consummated. (See e.g., Vigoda v. DCA Prods. Plus Inc., 293 AD2d 265 [1st Dept. 2002]; Chemfab Corp. v. Integrated Liner Techs. Inc., 263 AD2d 788 [3rd Dept. 1999]; Snyder v. Sony Music Ent., Inc., 252 AD2d 294 [1st Dept. 1999].)⁸ Necessarily, from these cases it is apparent that if a person or entity decides to end a contract, or not consummate a contract, due to reasons unrelated to a particular defendant's misconduct, there are no proximate damages.⁹

Thus, to be proximate to the underlying harm (i.e., the malicious prosecution) the claimed damages must also be independent of other causes and reasonably related to the underlying tort. Should the alleged harm be due to other factors unrelated to the underlying misconduct, the plaintiff cannot recover damages. (See e.g., Ilic v. Rochester Gas & Elec. Corp., 262 AD2d 1019, 1019 [4th Dept. 1999]: "Supreme Court properly granted that part of defendant's motion for partial summary judgment seeking dismissal of the claims for damages for the alleged loss of credit and financing, past carrying costs and future carrying costs on the property and plaintiff's lost earnings. Those claims for damages cannot be "reasonably traced to the event" and are not "independent of other causes" (Steitz v. Gifford, 280 NY 15, 20, 19 N.E.2d 661; see, Apollo Steel Corp. v. Melco Cranes, 202 AD2d 1049, 1049—1050, 609 N.Y.S.2d 121)." See, also, Jabbour v. Albany Med. Ctr., 237 AD2d 787, 790 [3rd Dept. 1997]: "Along with demonstrating wrongful means, a plaintiff must also establish that the wrongful acts were the proximate cause of the rejection of the plaintiff's proposed contractual relations (see, NBT Bancorp v. Fleet/Norstar Fin. Group, 215 AD2d 990, 628 N.Y.S.2d 408, affd. 87 NY2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492).")¹⁰

Here, for the plaintiff to establish damages related to the G&W claim, it is not sufficient that the defendants' misconduct was a "factor" in G&W's decision to terminate its relationship with Lawley. The plaintiff must establish that the defendants' misconduct was a proximate cause (i.e., a substantial factor) in G&W's decision to terminate its contract with Lawley and the plaintiff.

The Court Grants Leave to Renew and Adheres to its Previous Determination

In the prior summary judgment motion the defendants submitted the affidavit of Shayne Magdoff — a Vice-President at G&W- in support of their motion (hereinafter "Magdoff"). In the affidavit, Ms. Magdoff avers that G&W kept its business with the plaintiff after he left Titan, that she was aware that Titan sought to pursue criminal charges and after he was criminally charged "GW continued to retain him as its insurance and benefits consultant" as they were pleased with his work. Additionally, they submitted the deposition testimony of Michael Mancuso, a partner at Lawley. Mr. Mancuso testified that Lawley (and the plaintiff) lost the G&W account when G&W acquired another railroad in Florida and the "decision makers" issued a "request for proposal" which resulted in Lawley losing the account to another broker. Finally, the defendants submit an affidavit from Mr. Mancuso in which he avers that:

It is my understanding that the sole reason Lawley lost the G&W account was because of a commercial deal between G&W and a major railroad company in Jacksonville, Florida. After that, a large brokerage firm in Florida handled the needs of G&W. While the G&W account was no longer Mr. Prattico's to lose, it certainly did not leave Lawley because of any reasons involving the defendants.

In support of his motion for leave to renew, the plaintiff submitted two affirmations. The first was from Matthew C. Brush, the former Chief Human Resource Officer at G&W during the relevant time period (hereinafter "Brush"). He averred that during the RFP process "we received a proposal from Fausto Prattico, who was then at Lawley Insurance. However, we removed Fausto Prattico from consideration to continue as G&W's insurance broker and consultant because of a criminal proceeding pending against him at the time."

The second affirmation was from Shayne Magdoff. Ms. Magdoff averred that "[a]fter my testimony before the Monroe County Grand Jury, I was informed by G&W representatives, including G&W's former Chief Human Resource Officer, Matthew Brush, that G&W would no longer consider using Fausto Prattico as its insurance and benefits consultant due to the criminal charge filed against him. I was informed that G&W did not believe it would be in its best interests to continue working with Fausto Prattico in light of the allegations asserted against him." She further averred that she was asked to sign an affirmation in March of 2025 but demurred until she could confirm with G&W that it did not object.

In support of their motion for leave to renew, the defendants offer the deposition testimony of Magdoff, Brush, and Emily Ferrell, corporate representative of G&W (hereinafter "Ferrell").¹¹

Magdoff, Brush, and Ferrell all testified that G&W acquired another railroad holding company (comprised of multiple railroad companies) which greatly expanded its employee headcount. As a result, G&W decided to issue a request for proposals (hereinafter "RFP") to multiple insurance brokerage firms, including Lawley. G&W ultimately decided not to renew their contract with Lawley and instead awarded their business to another company. The decision was made by a committee comprised of Magdoff, Ferrell, and Brush, and three employees of the newly acquired holding company.

Ferrell testified that although G&W was aware of the plaintiff's criminal charge, it did not impact their decision to terminate their contract with Lawley.¹² G&W was disappointed with some of Lawley's prior work-product, and G&W was "concerned about Lawley being able to handle the amount of business that we projected, you know, with the change and the doubling in size".¹³ Ferrell testified that the plaintiff's criminal charge "was not the deciding factor".¹⁴

Brush, during his testimony, effectively disavowed the affidavit he provided to the plaintiff.¹⁵ He testified further that prior to the RFP being issued, G&W had concerns about whether Lawley would be able to handle the increased workload due to G&W's increase in employee staffing.¹⁶ When asked about his knowledge of the plaintiff's criminal charge, Brush responded:

Q. As you sit here today, do you know what the criminal charge was?

A. I don't recall the details of it, but it was something between him and his former employer.

Q. You don't know exactly what he was charged with criminally?

A. I don't.

Q. You don't know circumstances by which he was even charged in the first place?

A. I -- I don't -- I don't recall.

Q. Even though Mr. Prattico had a criminal charge pending against him, G & W was still willing to entertain and accept an RFP from him in 2012, correct?

A. I don't recall when exactly in the timeline that we're talking about I became aware of the criminal charges. My recollection is that that represented a problem for the company in terms of continuing a relationship with him.

Q. But without regard -- I guess what I'm asking is this: Whether or not Mr. Prattico had been criminally charged in any regard, is it true to say that G & W was going to be moving on from Lawley to another broker at that timeframe?

MR. WHITFORD: Object to form.

A. I think it was likely that we would move on, yes.

Q. In other words, said this way, if Mr. Prattico had not been charged with a crime, is it fair to say that G & W was still going to move on with a different broker?

MR. WHITFORD: Object to form.

A. Highly likely.

Q. I'm sorry, what? I missed that.

A. I said, highly likely, yes.¹⁷

Brush also testified that it was the suspicion of he and Magdoff prior to the RFP process that Lawley would not be able to meet the RFP requirements, and during the RFP process G&W was "going to be moving on from Lawley".¹⁸ However, Brush testified:

Q. Understanding you don't know exactly when that occurred, but if you had known that Mr. Prattico had been charged criminally prior to making a final decision about whether to select Lawley or any other broker through the RFP process, would his -- would the criminal charges pending against him have impacted your decision on whether to use him as a broker?

A. Yes.¹⁹

Magdoff did not disavow her affidavit during her EBT testimony. Although she also confirmed that G&W had reservations about Lawley's work prior to the RFP process, that Lawley would not be capable of meeting the expanded needs of G&W after their acquisition, and another broker would be a "better fit", she stated that the "issue of criminality" was also part of the decision process. She "did not believe" that Lawley would be "in the running" even if they were not aware of the plaintiff's criminal charge, but that the decision to move on from Lawley was partly due to the criminal charge.²⁰

Assuming with the above testimony the defendants met their initial burden in establishing entitlement to summary judgment dismissing the G&W claim, there exist material questions of fact requiring denial of their motion. Whether the plaintiff can establish that G&W's awareness of his criminal charge was a substantial factor in the G&W decision to terminate its relationship with Lawley, or whether that decision was independent of the plaintiff's criminal charge cannot be resolved on the parties' submissions. Although the defendants have submitted significant evidence that G&W's decision was made due to independent factors, and was not substantially informed by the knowledge of plaintiff's criminal charge, the resolution of this issue requires credibility determinations not properly made by this Court. (Zbock v. Gietz, 145 AD3d 1521 [4th Dept. 2016].) A fair inference can be drawn that the G&W decision was based on both the plaintiff's criminal charge and G&W's belief that Lawley would not be able to meet the goals outlined in the RFP.

" 'It is equally well established that [summary judgment] should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility' (Scott v. Long Is. Power Auth., 294 AD2d 348, 348, 741 N.Y.S.2d 708; see Ruiz v. Griffin, 71 AD3d 1112, 1115, 898 N.Y.S.2d 590)." (Katz v. Beil, 142 AD3d 957, 964 [2nd Dept. 2016].) ""When reviewing a motion for summary judgment the focus of the court's concern is issue finding, not issue determination, and the affidavits should be scrutinized carefully in the light most favorable to the party opposing the motion". (Goldstein v County of Monroe, 77 AD2d 232, 236; Renda v Frazer, 75 AD2d 490.)" (Robinson v. Strong Mem'l Hosp., 98 AD2d 976, 976 [4th Dept. 1983]; see also Gitlin v. Chirinkin, 98 AD3d 561 [2nd Dept. 2012].)

Defendants did not meet their heavy burden. Thus, although the Court grants the motion for leave to renew, upon consideration, the Court adheres to its previous determination.

Based upon the foregoing, and the papers filed herein,²¹ it is hereby

ORDERED that the defendants' motion for leave to renew is granted and upon renewal, the Court adheres to its previous determination; and it is further

ORDERED that the parties appear for a day certain trial to begin on September 8, 2026.

Dated: July__, 2026

_______________________________

Hon. Daniel J. Doyle

Supreme Court Justice

FOOTNOTES

1.   "G&W" refers to Genesee & Wyoming Railroad. As set forth below, plaintiff claims that once employees of "G&W" discovered that he had been criminally charged, "G&W" terminated its business relationship with Lawley Benefits Group, LLC (hereinafter "Lawley"), with which the plaintiff was an independent contractor overseeing the G&W account.

2.   Both parties move for sanctions (again). Both motions are denied. Both requests are patently without merit.

3.   Decision and Order of the Hon. Debra A. Martin, ASCJ, dated January 7, 2020 (NYSCEF Docket # 194, 259).

4.    See also Loeb v. Teitelbaum, 77 AD2d 92, 104—05 (2nd Dept. 1980), amended, 80 AD2d 838, (1981), emphasis supplied:As a general rule, the plaintiffs in a malicious prosecution action may recover in damages for whatever are the direct, natural and proximate results of the criminal prosecution (see Broughton v State of New York, 37 NY2d 451, supra), including those for suffering arrest and imprisonment (see Halberstadt v New York Life Ins. Co., 194 NY 1, supra; Sheldon v Carpenter, 4 NY 579), injury to reputation and character (Sheldon v Carpenter, supra; Scott v Dennett Surpassing Coffee Co., 51 App Div 321; Restatement, Torts 2d, § 670), injury to feelings (see Halberstadt v New York Life Ins. Co., supra), and counsel fees and expenses in defending the criminal prosecution (see Worden v Davis, 195 NY 391; Schanbarger v Kellogg, 43 AD2d 362, affd 37 NY2d 451, cert den 423 U.S. 929; Broughton v State of New York, 43 AD2d 389, mod on other grounds 37 NY2d 451, cert den sub nom. Schanbarger v Kellogg, 423 U.S. 929, supra; Mastic Fuel Serv. v Van Cook, 55 AD2d 599; see, generally, Restatement, Torts 2d, §§ 670, 671).

5.    See e.g., Garrison v. Sun Printing & Publ'g Ass'n, 207 NY 1, 7 (1912):The general rule in torts applied to such actions as those of negligence is that a wrongdoer is responsible for the natural and proximate consequences of his conduct, and what are such consequences must be generally left for the determination of the jury. Ehrgott v. Mayor, etc., of NY, 96 NY 264, 282, 48 Am. Rep. 622; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. The essential requirements in such cases are that the damages shall be directly traceable to the wrongful act, and not the consequence of some intervening outside cause, and that they shall be the natural result thereof.

6.    See also Kinge v. State, 79 AD3d 1473 (3rd Dept. 2010); Broughton v. State, 37 NY2d 451, 460 (1975): "Having represented himself, Schanbarger did not recover any legal fees. There the trial court awarded damages for mental anguish and humiliation stemming from the arrest. This was proper in that it only recompensed him for those damages proximately related to the tort and did not extend beyond the arraignment."

7.   It is true that there is a fundamental difference between the permissible damages in intentional tort cases and negligence cases. "It makes sense that the scope of recovery for deliberate torts is broader than for torts based on the failure to exercise skill or care (see e.g. Johnson v. Jamaica Hosp., 62 NY2d 523, 531, 478 N.Y.S.2d 838, 467 N.E.2d 502 [1984] ["as a matter of settled law, tort liability is predicated on the nature of the act of the tort-feasor, not simply the injury of the victim"])". (Dombrowski v. Bulson, 19 NY3d 347, 351—52, [2012], FN omitted.) Here, the parties to not dispute that economic damages are recoverable to the plaintiff. The issue is whether the defendants' misconduct is proximately related to the loss of the G&W account.

8.   To be sure, "proximate cause" and "but for causation" are not interchangeable, but they are related concepts. (Burlington Ins. Co. v. NYC Transit Auth., 29 NY3d 313 [2017].)

9.   There can be more than one "proximate cause" of a harm. (See e.g., Ventura v. Sturino, 230 AD3d 1378 [2nd Dept. 2024]; see also PJI 2:70.) Here, a jury could conclude that G&W's decision to terminate its contract with Lawley was due to both the plaintiff's criminal charge, and dissatisfaction with Lawley's work, or Lawley's inability to perform the services given G&W's recent increase in staffing.

10.    See Steitz v. Gifford, 280 NY 15, 20 [1939]:In actions in tort, there are certain well-settled and universally recognized rules relating to damages recoverable, as the court substantially charged. The person responsible for the injury must respond for all damages resulting directly from and as a natural consequence of the wrongful act according to common experience and in the usual course of events, whether the damages could or could not have been foreseen by him. The damages cannot be remote, contingent or speculative. They need not be immediate, but need to be so near to the cause only that they may be reasonably traced to the event and be independent of other causes.

11.   The Court rejects the plaintiff's argument that the defendants did not establish a reasonable justification for failure to present the deposition testimony of Magdoff, Brush, and Ferrell in the prior summary judgment motion. The Court excused the plaintiff's prior failure to submit testimony from Magdoff and Brush in opposition to the summary judgment motion and accepted their affidavits as admissible proof in support of the plaintiff's motion for leave to renew. Upon granting the plaintiff's motion, and in the exercise of discretion, the Court allowed the defendants to conduct post-note-of-issue discovery limited to depositions or Magdoff, Brush, and a corporate representative of G&W. Those transcripts — like the Magdoff and Brush affidavits- were not available to the defendants on the prior summary judgment motion. Furthermore, the Court rejects the plaintiff's argument that those transcripts are not admissible as they are not compliant with CPLR Rule 3116. In reply, defendants submit confirmation that Magdoff, Brush, and Ferrell waived their rights to "read-and-sign".

12.   EBT of Emily Ferrell (NYSCEF Docket # 327) at pages 48-49.

13.    Id. at page 61.

14.    Id. at page 62; 83-85.

15.   Brush testified that he was contacted directly by the plaintiff. The plaintiff informed him that "he was still involved in a legal case with his former employer" and "the issue was about criminal charges being a barrier to Lawley being [G&W's] broker", and an affidavit from Brush was important as "the case was getting close to settlement and that it would be helpful to make that settlement happen if I would sign an affidavit". Having no independent memory of the incident (other than he had been aware of the plaintiff's criminal charge) and not having a reason to disbelieve the plaintiff he agreed to sign the affidavit prepared by the plaintiff's counsel. However, during his deposition he took "acception [sic] and disagreed with what [he] was told [by plaintiff] in [his] 2025 affidavit". (EBT of Matthew Brush [NYSCEF Docket # 328] at pages 71-87.)

16.   Brush also testified that he received an email from Magdoff wherein she stated (prior to the decision of the committee on the RFP) that she had spoken with the plaintiff, the plaintiff did want to complete the RFP, but that Magdoff "did specifically mention that we felt that [G&W] had outgrown them". (NYSCEF Docket # 334.)

17.   EBT of Matthew Brush at pages 58-59.

18.    Id. at 86, 98.

19.    Id. at 99.

20.   Magdoff EBT (NYSCEF Docket # 326) at pages 157-159; 161-162; 218-219. At the time of her testimony, Magdoff was seventy-four (74) years of age being asked to recall what had occurred fourteen (14) years prior. Understandably, her testimony was- at times- inconsistent. Inexplicably, neither party sought to depose any representative of G&W until January of 2026 (over thirteen [13] years after suit was initiated), despite the G&W claim being the significant portion of the plaintiff's economic damages.

21.   Notice of Motion (NYSCEF Docket # 324); Affirmation in Support with exhibits (NYSCEF Docket #s 325-339); Memorandum of Law in Support (NYSCEF Docket # 340); Affirmation in Opposition to Motion with exhibits (NYSCEF Docket #s 342-345); Memorandum of Law in Opposition (NYSCEF Docket # 346); Affirmation in Reply with exhibits (NYSCEF Docket #s 347-349).

Daniel J. Doyle, J.