Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 1 of 7 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`BIOREFERENCE HEALTH, LLC,
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`BELLHAVEN MANAGEMENT, LLC d/b/a
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`BELLHAVEN CENTER FOR REHABILITATION
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`AND NURSING CARE,
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`- against -
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`Plaintiff,
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`Defendants.
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`Case No. 22-cv-04901
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`COMPLAINT
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`Plaintiff BioReference Health, LLC (“BioReference”), for its Complaint against
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`defendant Bellhaven Management, LLC, d/b/a Bellhaven Center for Rehabilitation and Nursing
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`Care (“Client”), alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`In this action, BioReference seeks to collect from Client fees in the total
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`amount of $269,897.75 for COVID-19 tests BioReference performed pursuant to a binding
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`contract. There is no dispute that BioReference rendered these services. Nor is there any dispute
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`that Client owes BioReference the amounts in question. Client simply refuse to pay.
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`2.
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`This dispute is governed by the Laboratory Services Agreement for
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`COVID-19 RT-PCR and Serology Antibody Testing for Employees, dated on or about May 15,
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`2020 (the “Agreement”), entered into by the Clients and BioReference during a bleak time in
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`New York’s fight against COVID-19. Client and BioReference entered into the Agreement
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`following a government order mandating that all assisted living facilities test their employees
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`twice a week.
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`3681064.1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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` ------------------------------------------------------------------- x
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`:
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`BIOREFERENCE HEALTH, LLC,
`:
`
`
`:
`
`
`:
`
`
`:
`
`
`:
`
`
`:
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`BELLHAVEN MANAGEMENT, LLC d/b/a
`:
`BELLHAVEN CENTER FOR REHABILITATION
`:
`AND NURSING CARE,
`:
`
`:
`
`:
`:
` ------------------------------------------------------------------- x
`
`
`
`
`
`
`
`
`
`
`
`
`- against -
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendants.
`
`Case No. 22-cv-04901
`
`COMPLAINT
`
`Plaintiff BioReference Health, LLC (“BioReference”), for its Complaint against
`
`defendant Bellhaven Management, LLC, d/b/a Bellhaven Center for Rehabilitation and Nursing
`
`Care (“Client”), alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`In this action, BioReference seeks to collect from Client fees in the total
`
`amount of $269,897.75 for COVID-19 tests BioReference performed pursuant to a binding
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`contract. There is no dispute that BioReference rendered these services. Nor is there any dispute
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`that Client owes BioReference the amounts in question. Client simply refuse to pay.
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`2.
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`This dispute is governed by the Laboratory Services Agreement for
`
`COVID-19 RT-PCR and Serology Antibody Testing for Employees, dated on or about May 15,
`
`2020 (the “Agreement”), entered into by the Clients and BioReference during a bleak time in
`
`New York’s fight against COVID-19. Client and BioReference entered into the Agreement
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`following a government order mandating that all assisted living facilities test their employees
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`twice a week.
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`3681064.1
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`Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 2 of 7 PageID #: 2
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`3.
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`BioReference has upheld its end of the bargain and has provided the
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`requested testing for Client. In response, however, Client has refused to pay BioReference what
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`it is owed.
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`4.
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`Because Client refuses to fulfill its payment obligations, BioReference had
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`no choice but to bring the instant action.
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`THE PARTIES
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`5.
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`BioReference is a limited liability company organized under the laws of
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`Delaware, with its principal place of business at 481 Edward H. Ross Dr., Elmwood Park, New
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`Jersey 07407-3128. BioReference is a clinical testing laboratory offering testing, information
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`and related services to physician offices, clinics, hospitals, nursing homes, employers and
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`governmental units. BioReference has supported New York State by providing testing for the
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`first public drive-through testing collection facility set up on the East Coast, a model which was
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`then replicated at dozens of other locations throughout the state. BioReference, in partnership
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`with the State of New York, also initially offered 5,000 COVID-19 swab tests a day at additional
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`satellite testing sites and has since increased the daily capacity significantly to address emerging
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`needs and demand.
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`6.
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`Upon information and belief, Client is a New York limited liability
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`company with its principal place of business at 110 Beaver Dam Road, Brookhaven, NY 11719.
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`Upon information and belief based on public filings with, inter alia, the New York State
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`Department of State, Division of Corporations, the members of Bellhaven are Charles-Edouard
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`Gros, Devorah Friedman, Sharon Einhorn, Israel Minzer, and Ernest Schlesinger, who are all
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`citizens of the State of New York.
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`3681064.1
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`Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 3 of 7 PageID #: 3
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`JURISDICTION AND VENUE
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`7.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §
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`1332(a)(1) because there is complete diversity of citizenship and the amount in controversy,
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`exclusive of interest and costs, exceeds $75,000.
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`8.
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`This Court has personal jurisdiction over Client pursuant to CPLR 301
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`because its principal places of business is in New York.
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`9.
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`Venue in this District is proper pursuant to 28 U.S.C. § 1391(b)(1) and (2)
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`because, inter alia, a substantial part of the events or omissions giving rise to the claims in this
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`action occurred in this District and Client resides in this District.
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`FACTUAL ALLEGATIONS
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`Client Contracts with BioReference to Provide COVID-19 Testing
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`10.
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`On May 10, 2020, amid the height of the unprecedented COVID epidemic
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`in New York, Governor Andrew Cuomo ordered “nursing homes and all adult care facilities . . .
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`to test or make arrangements for the testing of all personnel, including all employees, contract
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`staff, medical staff, operators and administrators, for COVID-19, twice per week” (the
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`“Executive Order”). The penalty for failing to comply with the Executive Order included steep
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`fines, and in some cases, the suspension or revocation of a facility’s operating license.
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`11.
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`BioReference is a provider of comprehensive testing services. Many
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`nursing homes and laboratories contracted with BioReference to perform crucial COVID-19
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`testing to ensure the health and safety of nursing home residents—one of the most vulnerable
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`populations during the pandemic. Client, a rehabilitation and nursing care center, sought
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`BioReference’s crucial services.
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`3681064.1
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`Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 4 of 7 PageID #: 4
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`12.
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`On or around May 15, 2020, Client and BioReference1 entered into the
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`Agreement. A true and correct copy of the Agreement is attached hereto as Exhibit A. Pursuant
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`to the Agreement, BioReference agreed to “perform, upon request by Client and to the extent
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`within its capabilities, COVID-19 Tests for Tested Persons.” See Ex. A § 1.1.
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`13.
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`The Agreement provided that “Client agrees to pay Laboratory Forty
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`Dollars ($40) per specimen submitted for the Serology Test performed by Laboratory, if the
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`Laboratory’s phlebotomist performs the draw of the specimens an additional Ten Dollars ($10)
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`will be added to the cost of the Serology Test; and Sixty-Five Dollars ($65.00) per specimen
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`submitted for the RT-PCR Test performed by Laboratory.” Id. § 3.1. It further provided, in
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`pertinent part, that “Laboratory shall submit a detailed written invoice to Clients in connection
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`with COVID-19 Tests rendered under this Agreement,” id. § 3.2, and that “[w]ithin ten (10) days
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`of receipt, Client shall submit payment to Laboratory for the undisputed amount of each
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`invoice,” id. § 3.3.
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`14.
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`The Agreement provides that “[t]he laws of the State of New Jersey shall
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`govern the terms of this Agreement.” See id. § 5.11.
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`BioReference Performs Pursuant to the Agreement
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`15.
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`Beginning in the summer of 2020, Client began sending BioReference
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`specimens for testing, and BioReference performed the requested testing on the specimens and
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`provided the test results to Client.
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`16.
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`Client failed to submit payment to BioReference for the tests performed
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`by BioReference pursuant to the Agreement.
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`1 The Agreement was executed by BioReference Laboratories, Inc., which is the
`predecessor-in-interest to plaintiff BioReference Health, LLC. For ease of reference, the term
`“BioReference” is used throughout this Complaint.
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`3681064.1
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`Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 5 of 7 PageID #: 5
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`Client Breached the Agreement by Failing to Pay Amounts Owed to BioReference
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`17.
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`As detailed in the schedule appended hereto as Exhibit B, BioReference
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`sent invoices to Client between June 2020 and March 2021 for tests performed pursuant to the
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`Agreement.
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`18.
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`19.
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`BioReference billed Client $269,897.75 pursuant to the Agreement.
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`BioReference has contacted Client multiple times concerning the
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`outstanding payments, but Client has failed to pay.
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`FIRST CLAIM FOR RELIEF
`Breach of the Agreement
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`20.
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`BioReference repeats and re-alleges the allegations set forth in paragraphs
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`1 through 19 as if fully set forth herein.
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`21.
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`BioReference and Client entered into the Agreement which is a binding
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`and valid contract.
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`22.
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`BioReference performed its obligations under the Agreement by
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`performing the COVID-19 tests.
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`23.
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`Client has failed to make payment to BioReference, in breach of the
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`Agreement, causing BioReference injury.
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`24.
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`By reason of the foregoing, BioReference is entitled to a judgment
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`awarding it damages in an amount to be determined at trial, but not less than $269,897.75, plus
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`pre- and post-judgment interest.
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`SECOND CLAIM FOR RELIEF
`Account Stated
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`25.
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`BioReference repeats and re-alleges the allegations set forth in paragraphs
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`1 through 24 as if fully set forth herein.
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`3681064.1
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`Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 6 of 7 PageID #: 6
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`26.
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`BioReference sent invoices to Client between June 2020 and March 2021
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`that together sought payment of $269,897.75 for COVID-19 tests that BioReference performed.
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`The invoices were accepted as correct because Client did not dispute that it owed BioReference
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`$269,897.75.
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`27.
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`28.
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`Client promised to pay BioReference through the Agreement.
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`By reason of the foregoing, BioReference is entitled to a judgment
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`awarding it damages in an amount to be determined at trial, but not less than $269,897.75, plus
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`pre- and post-judgment interest.
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`3681064.1
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`Case 2:22-cv-04901-GRB-AYS Document 1 Filed 08/19/22 Page 7 of 7 PageID #: 7
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`PRAYER FOR RELIEF
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`WHEREFORE, BioReference Health, LLC prays that judgment be awarded in its
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`favor and against Defendant Bellhaven Management, LLC, d/b/a Bellhaven Center for
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`Rehabilitation and Nursing Care, as follows:
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`(a)
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`(b)
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`(c)
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`A judgment against Bellhaven Management, LLC, d/b/a Bellhaven Center
`for Rehabilitation and Nursing Care, for damages in an amount to be
`determined at trial, but in any event no less than $269,897.75, plus pre-
`and post-judgment interest;
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`Attorneys’ fees and costs of suit; and
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`Such other and further relief as to the Court may seem just and proper.
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`Dated: New York, New York
`August 19, 2022
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`FRIEDMAN KAPLAN SEILER &
` ADELMAN LLP
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` /s/ Eric Corngold
`Eric Corngold (ecorngold@fklaw.com)
`Priyanka Wityk (pwityk@fklaw.com)
`Jacob Lewis (jlewis@fklaw.com)
`7 Times Square
`New York, NY 10036-6516
`(212) 833-1100
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`Attorneys for Plaintiff BioReference Health, LLC
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`3681064.1
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`7
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