throbber
Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 1 of 19
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`------------------------------------------------------------X
`QUEST DIAGNOSTICS INCORPORATED.,
`
` Plaintiff,
`
`-against-
`
`THE COURTYARDS LLC,
`
`COMPLAINT
`
`Civil Action No. ________
`
` Defendant.
`------------------------------------------------------------X
`Plaintiff QUEST DIAGNOSTICS INCORPORATED ("Plaintiff" or “Quest”),
`
`through its attorneys, The Glennon Law Firm, P.C., asserts the following upon
`
`information and belief, except for those allegations pertaining to Plaintiff, which is on
`
`personal knowledge, for its complaint against Defendant THE COURTYARDS LLC
`
`(“Defendant”) as follows:
`
`NATURE OF THIS ACTION
`
`1.
`
`Nursing homes have been the epicenter of the COVID-19 pandemic in the
`
`United States. It has been widely reported “that nearly 1 in 10 people who lived in
`
`nursing homes in the United States had died of the virus.” See Jay Caspian Kang, The
`
`Forgotten Nursing-Home Tragedy, N.Y. Times, dated November 4, 2021:
`
`https://www.nytimes.com/2021/11/04/opinion/nursing-home-deaths.html. During the first
`
`months of the pandemic, the United States faced severe shortages and delays in
`
`diagnostic testing. See, e.g., Despite Early Warnings, U.S. Took Months To Expand
`
`Swab Production For COVID-19 Test, National Public Radio, last visited dated May 12,
`
`2020: https://www.npr.org/2020/05/12/853930147/despite-early-warnings-u-s-took-
`
`months-to-expand-swab-production-for-covid-19-te.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 2 of 19
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`2.
`
`On May 10, 2020, former Governor Andrew Cuomo issued an executive
`
`order mandating that all nursing homes and adult care facilities in the state must test their
`
`staff two times per week. See Executive Order 202.30, dated May 10, 2020,
`
`https://www.governor.ny.gov/sites/default/files/atoms/files/EO202.30.pdf (the
`
`“Executive Order”). The Executive Order directed that nursing homes and other adult
`
`care facilities “shall cooperate fully with Department of Health and local health
`
`department staff to facilitate such testing.”
`
`3.
`
`In furtherance of the directives in the Executive Order, the Department of
`
`Health entered into a written contract with Plaintiff to provide COVID-19 testing to
`
`nursing home personnel. See COVID-19 Laboratory Testing Services Agreement, dated
`
`May 18, 2020 (the “DOH Contract”). Under the terms of the DOH Contract, Plaintiff
`
`agreed to provide 7,500 COVID-19 tests per day to all personnel1 of nursing homes and
`
`adult care facilities, adult homes, enriched housing programs and assisted living facilities
`
`(“Facilities”) in New York starting in June 2020. See id. Plaintiff agreed to charge no
`
`more than $100 per test and that it would establish mechanisms for payment, which may
`
`have included invoicing the nursing home facilities directly for the testing services on an
`
`account bill basis.
`
`4.
`
`On or about September 3, 2020, Plaintiff sent to Defendant an agreement
`
`presenting terms for whereby the Defendant would engage the Plaintiff to provide
`
`COVID-19 testing to Defendant’s employees (the “Agreement”), pursuant to New York’s
`
`Executive Order. The Agreement was opened and reviewed by Defendant on or about
`
`Personnel included all employees, contracted staff, medical staff, operators, and
`1
`administrators of Facilities, all of whom were required to be tested twice per week under the
`Executive Order.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 3 of 19
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`September 3, 2020. This Agreement also provided that Plaintiff would charge no more
`
`than $100 per test.
`
`5.
`
`In accordance with the DOH Contract and the Agreement with Defendant,
`
`Plaintiff provided more than a thousand COVID-19 PCR tests for personnel and staff at
`
`Defendant’s Facility. Defendant accepted Quest’s testing services, provided specimens to
`
`Quest for testing and received from Quest the test results for Defendant’s personnel and
`
`staff. After rendering testing services, Quest sent invoices to the Defendant on a monthly
`
`basis, which charged $100 per test—the rate set by the DOH Contract and the
`
`Agreement. Defendant did not object to the accuracy of the sums owed as stated in the
`
`invoices or the $100 per test rate while Quest was providing services to Defendant. To
`
`date, Defendant has refused to pay these invoices without a reasonable or proper
`
`justification. Accordingly, Defendant is liable to Quest for breach of contract, account
`
`stated, collection and litigation expenses (including among other things, attorneys’ fees
`
`and costs), unjust enrichment, quantum meruit, in an amount no less than $200,000.00,
`
`plus statutory pre-judgment interest in the amount of 9 percent (9%) per annum.
`
`THE PARTIES AND JURISDICTION
`
`6.
`
`The Plaintiff is incorporated under the laws of Delaware, and has a
`
`principal place of business in Secaucus, New Jersey. Accordingly, Plaintiff is a citizen of
`
`Delaware and New Jersey for the purposes of diversity jurisdiction.
`
`7.
`
`Upon information and belief, Defendant, The Courtyards LLC, is a non-
`
`profit organization incorporated under the laws of New York State with a principal place
`
`of business at 5285 South Park Avenue, Hamburg, New York 14075-1520, which is a
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 4 of 19
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`long-term senior housing facility. Accordingly, Defendant is a citizen of New York for
`
`the purposes of diversity jurisdiction.
`
`8.
`
`This Court has diversity jurisdiction over the claims asserted in this Action
`
`pursuant to 28 U.S.C. § 1332, as there is complete diversity of citizenship between the
`
`parties and the amount in controversy exceeds, exclusive of interests and costs, the sum
`
`of seventy-five thousand dollars ($75,000.00).
`
`9.
`
`Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b)(2), as a
`
`substantial part of the events or omissions giving rise to Plaintiff’s claims occurred within
`
`this judicial district.
`
`STATEMENT OF FACTS
`
`10.
`
`Quest offers access to diagnostic testing services for a wide variety of
`
`conditions, including cancer, cardiovascular disease, infectious disease, neurological
`
`disorders, and COVID-19.
`
`11.
`
`From the outset of the COVID-19 pandemic in or about early 2020, New
`
`York experienced a surge in COVID-19 cases and mortalities compared to other states at
`
`that time. The COVID-19 pandemic was particularly acute in nursing home and long-
`
`term care facilities in New York.
`
`12.
`
`To address the mounting crisis posed by COVID-19, former Governor
`
`Cuomo issued Executive Order 202.30, which provided in relevant part:
`
`“the operator or administrator of all nursing homes and all
`adult care facilities, including all adult homes, enriched
`housing programs and assisted living residences to test or
`make arrangements for the testing of all personnel,
`including all employees, contract staff, medical staff,
`operators and administrators, for COVID-19, twice per
`week, pursuant to a plan developed by the facility
`administrator and filed with the Department of Health . . . .
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 5 of 19
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`the operator and administrator shall cooperate fully with
`Department of Health and local health department staff to
`facilitate such testing.”
`
`“The Commissioner of Health is authorized to suspend or
`revoke the operating certificate of any nursing home or
`adult care facility if it is determined that such facility has
`not complied with this Executive Order . . . .”
`
`“Any nursing home or adult care facility which does not
`comply with this Executive Order shall be subject to a
`penalty for non-compliance of $2,000 per violation per day,
`. . . and any subsequent violation shall be punishable . . .
`with a penalty of $10,000 per violation per day.”
`
`“Any personnel of a nursing home or adult care facility
`who refuse to be tested for COVID-19 pursuant to a plan
`submitted to the Department of Health shall be considered
`to have outdated or incomplete health assessments and shall
`therefore be prohibited from providing services to such
`nursing home or adult care facility until such testing is
`performed.” See Executive Order 202.30.
`
`13.
`
`Hence, the Executive Order placed obligations on Facilities to test staff for
`
`COVID-19 twice per week. The Executive Order also called for the imposition of
`
`sanctions for the failure to comply with the directive, including fines of up to $10,000
`
`and the suspension of personnel who refused to test.
`
`QUEST’S CONTRACT WITH NEW YORK STATE
`TO PROVIDE COVID-19 TESTS
`
`14.
`
`In furtherance of the Executive Order, Quest entered into a written
`
`agreement with the DOH, dated May 18, 2020, to provide COVID-19 PCR tests and
`
`related services to certain Facilities in New York State (the “DOH Contract”). A true and
`
`correct copy of the DOH Contract is attached hereto as Exhibit A. Among other things,
`
`Quest agreed to provide such Facilities:
`
`“testing for the detection of COVID-19 using a COVID-19
`molecular test that has Emergency Use Authorization
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 6 of 19
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`(EUA) from the U.S. Food and Drug Administration (FDA)
`or that has been approved by the New York State
`Department of Health as a laboratory developed test”
`
`“a daily minimum of COVID-19 Testing at a daily average
`rate of 7500 tests per day . . . , pursuant to electronic orders
`from the Facilities’ medical directors, or other medical
`professional as otherwise approved by NYS and agreed
`upon by Lab Provider, who are authorized under state or
`federal law or guidance issued by federal or state
`authorities to order such laboratory tests.”
`
`“turn-around time for reporting and resulting from receipt
`of the specimen may vary based upon population served,
`demand and priorities among patients but Lab Provider’s
`will be required to provide no less than 90% of the results
`within 3-4 days or less from accessioning at the lab on
`average.” See DOH Contract ¶ 5(a), (b), (d).
`
`15.
`
`Under the DOH Contract, Quest agreed “that the rate for testing will be no
`
`greater than One Hundred Dollars ($100.00) in accordance with [CMS Ruling CMS-
`
`2020-01-R] https://www.cms.gov/files/document/cms-2020-01-r.pdf, or a lesser rate for
`
`comparable testing if the foregoing is modified by CMS for each completed COVID-19
`
`PCR test reported or lower rate agreed to by the Lab Provider and Facility.” See DOH
`
`Contract ¶ 7.
`
`16.
`
`The DOH Contract further provided that Quest “will establish, the
`
`mechanism for payment, which may include but is not limited to, invoicing the Facility
`
`directly for the Testing Services on an account bill basis or the Facility’s (or its
`
`employees to the extent applicable) insurance provider (e.g., individual and small group
`
`comprehensive health insurance, commercial insurance, or self-funded policies or
`
`contracts, Medicaid/Medicare or other federal funding sources, if applicable (“third party
`
`payors”)).” See DOH Contract ¶ 7.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 7 of 19
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`17.
`
`Additionally, the DOH Contract stated that, “[i]n the event that [Quest]
`
`experiences any collection issues, [Quest] shall provide NYS with written notice of such
`
`collection issues and upon demonstration that the [Quest] and/or [the nursing home]
`
`Facility has made reasonable efforts to obtain payment and has been denied payment
`
`from all applicable or appropriate third-party payors NYS will assist the [Quest
`
`Diagnostics] and/or Facility in seeking reimbursement from such third-party payors,
`
`federal funding sources and/or other funding sources, as applicable . . . .” See DOH
`
`Contract ¶ 7.
`
`QUEST’S CONTRACT WITH DEFENDANT
`
`18.
`
`Quest and Defendant performed pursuant to the Agreement, under which
`
`Quest was responsible for providing to Defendant laboratory services in connection with
`
`and for Defendant’s compliance with the NYS Executive Order 202.30, including
`
`reference to the DOH Contract, a copy of which is an attachment of Defendant’s
`
`Contract. A true and correct copy of the Defendant’s Contract sent, along with proof of
`
`transmission, is attached hereto as Exhibit B (“Defendant’s Contract”).
`
`19.
`
`Specifically, the recitals in Defendant’s Contract states in relevant part:
`
`“WHEREAS, in light of EO 202.30 and the ongoing
`Disaster Emergency, LTC Facility hereby engages Quest
`Diagnostics to perform the required COVID-19 testing for
`its staff and employees (the “Covered Employees”) in
`compliance with and during the effective term of EO
`202.30, and as may be extended or modified from time to
`time by Governor Cuomo and/or New York State;”
`
`20.
`
`Further paragraph 3.1 of Defendant’s Contract states:
`
`“3.1 Quest Diagnostics shall have the right to bill LTC
`Facility for the Testing Services performed pursuant to this
`Agreement, and LTC Facility shall reimburse Quest
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 8 of 19
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`Diagnostics for SARS-CoV-2 RNA (COVID-19),
`Qualitative NAAT, Test Order Number 39448 at rate of
`$100.00 per test.
`
`21.
`
`Further paragraph 3.2 of Defendant’s Contract provides for attorneys’ fees
`
`and costs and expenses incurred in collecting sums owed to Quest, including litigation
`
`and related expenses; specifically, the Defendant’s Contract provided:
`
`“3.2 LTC Facility agrees to make payment to Quest
`Diagnostics by check, ACH payment, certified money
`order, or electronic wire within thirty (30) days of the date
`of each Quest Diagnostics invoice for laboratory services,
`after which any undisputed unpaid invoice amounts shall be
`overdue. Where available, LTC Facility will be invoiced
`monthly via Quest Diagnostics eInvoice (Quest web-based
`invoicing system) or other similar electronic invoicing
`system. Paper invoices may incur additional fees. In the
`event that Quest Diagnostics sends the account for
`collection and/or initiates litigation in order to collect
`overdue amounts, LTC Facility shall be liable for all costs
`and expenses of such collection and/or litigation, including
`reasonable attorneys’ fees, court costs and expenses."
`
`DEFENDANT UTILIZED QUEST’S COVID-19 TESTING
`SERVICES AND REFUSED TO PAY QUEST
`
`22.
`
`In accordance with the terms of Executive Order and Defendant’s
`
`Contract, Defendant utilized Quest’s COVID-19 testing services in order to test its staff
`
`and personnel twice per week. Specifically, Quest performed over 1300 tests at
`
`Defendant’s Facility between May 2020 and August 2021.
`
`23.
`
`Quest provided testing services to Defendant. Defendant’s Contract was
`
`ratified by Defendant by their acceptance and continued use of Quest’s services.
`
`Defendant never objected.
`
`24.
`
`Pursuant to Defendant’s Contract, Quest sent invoices to Defendant on a
`
`monthly basis for its COVID-19 testing of Defendant’s staff and personnel. In
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 9 of 19
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`accordance with Paragraph 7 of the DOH Contract and paragraph 3.1 of Defendant’s
`
`Contract, Quest billed Defendant $100 per COVID-19 test performed. Under the terms of
`
`the invoices, Defendant was required to remit payment to Quest within thirty (30) days of
`
`receipt.
`
`25.
`
`To date, Defendant has refused to pay the balance from any of these
`
`invoices. According to Quest’s invoices, Defendant owes Quest an outstanding balance
`
`of $117,600.00 for COVID-19 testing. See Invoices attached hereto as Exhibit C.
`
`Quest’s invoices reflect the balances after accounting for any payments from third party
`
`payors, including insurance proceeds.
`
`26.
`
`Quest’s efforts to collect outstanding balances from third party sources
`
`were unsuccessful.
`
`27.
`
`In accordance with Paragraph 7 of the DOH Contract, on or about May 28,
`
`2021, Quest sent a written notice to the DOH advising that it was experiencing collection
`
`issues for laboratory testing services related to the Executive Order. Specifically, in its
`
`letter, Quest informed the DOH that it was owed, in the aggregate, more than $12 million
`
`from nearly three dozen nursing home facilities. Quest further advised:
`
`“The Agreement allowed for flexibility in the billing
`mechanisms to be used by Quest Diagnostics and most of
`the Facilities were set up as account bill such that the
`Facilities would be invoiced for testing services, but we
`have also attempted to do third party billing to payers based
`on requests from certain of the Facilities. Despite repeated
`collection attempts made by Quest Diagnostics to the
`Facilities and extensive efforts to submit claims to third
`party payers where requested by the Facilities, Quest
`Diagnostics has received no concrete assurances of
`payment from any source for a significant portion of the
`services we have performed.”
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 10 of 19
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`DEFENDANT REFUSED TO PAY THE INVOICES
`
`28.
`
`Defendant has advised Quest in writing that it will not pay Quest’s
`
`invoices, and directed it to seek payment from other sources, including third-party
`
`payors. Defendant—with full knowledge of the contents and amount of the invoices—did
`
`not allege that Quest failed to perform the COVID-19 testing set forth in the invoices.
`
`FIRST CLAIM FOR RELIEF
`Breach of Contract
`
`29.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “28” above with the same force and effect as if fully set forth
`
`herein.
`
`30.
`
`Defendant’s Contract with Quest was ratified by Defendant’s performance
`
`pursuant to the Contract’s terms for services to be rendered, which included confirmation
`
`that the cost per test would be up to $100.00. See Exhibit B.
`
`31.
`
`Plaintiff provided COVID-19 testing for Defendant’s personnel in
`
`accordance with the terms of Defendant’s Contract. Specifically, Plaintiff performed
`
`over 1300 tests for Defendant’s Facility between May 2020 and August 2021. Plaintiff
`
`provided timely invoices to Defendant for the COVID-19 tests it performed under the
`
`Defendant’s Contract and the DOH Contract.
`
`32.
`
`Defendant never objected to the accuracy of the sums owed as stated in
`
`the invoices submitted to it for the services and, in fact, accepted those services.
`
`33.
`
`In breach of Defendant’s Contract, Defendant failed and refused despite
`
`due demand, to pay Plaintiff the sum of $117,600.00 for COVID-19 testing on behalf of
`
`Defendant, from on or about May 1, 2020, through and including August 31, 2021.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 11 of 19
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`34.
`
`By reason of the foregoing breach of the Agreement, Plaintiff has been
`
`damaged in the amount $117,600.00, together with applicable pre-judgment interest
`
`thereon.
`
`SECOND CLAIM FOR RELIEF
`Breach of the Implied Contract
`
`35.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1’ through “34” above with the same force and effect as if fully set forth
`
`herein.
`
`36.
`
`Plaintiff performed COVID-19 testing services on Defendant’s employees
`
`and personnel on and between May 2020 and August 2021.
`
`37.
`
`The COVID-19 testing services performed by Plaintiff were completed at
`
`the request of and for the benefit of Defendant.
`
`38.
`
`Defendant accepted said COVID-19 testing services performed by
`
`Plaintiff by causing and requiring its employees and personnel to submit specimens for
`
`testing and Defendant accepted the results of said COVID-19 testing.
`
`39.
`
`The performance of COVID-19 testing services by Plaintiff and
`
`acceptance of these services by Defendant gives rise to a valid and enforceable implied-
`
`in-fact contract, with a reasonable value of said services of $117,600.00.
`
`40.
`
`By reason of the foregoing breach of the implied-in-fact contract, Plaintiff
`
`has been damaged in the amount of $117,600.00, together with appropriate pre-judgment
`
`interest thereon.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 12 of 19
`
`THIRD CLAIM FOR RELIEF
`Breach of the DOH Contract
`
`41.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “40” above with the same force and effect as if fully set forth
`
`herein.
`
`42.
`
`Even if Defendant contests the validity of Defendant’s Contract,
`
`nevertheless, Defendant caused or required its personnel to submit to COVID-19 tests
`
`twice per week and submitted those tests to Quest for laboratory testing and therefore
`
`accepted the test results without objection, in order to comply with Executive Order
`
`202.30. Therefore, Defendant assumed the DOH Contract and ratified its terms to Quest’s
`
`benefit, including to pay for the testing performed by Quest, with full knowledge of its
`
`obligations to pay Quest for such testing.
`
`43.
`
`Defendant therefore assumed the responsibilities and terms of the DOH
`
`Contract by accepting Quest’s testing services without raising any objections until
`
`months later. See Impulse Mktg. Grp., Inc. v. Nat'l Small Bus. Alliance, Inc., 2007 WL
`
`1701813, at *5 (S.D.N.Y. June 12, 2007).
`
`44.
`
`Defendant assumed the obligations of the DOH Contract by its conduct
`
`recognizing the existence of the DOH Contract by:
`
`a. Causing or requiring its employees to submit samples or COVID-19
`testing to comply with Executive Order 202.30.
`
`b. Submitting those samples to Quest for COVID-19 testing.
`
`c. Accepting the results of Quests COVID-19 testing of Defendant’s
`employees.
`
`d. Acknowledging that it faced substantial fines if it did not comply with
`Executive Order 202.30 by requiring or causing its employees to be tested
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 13 of 19
`
`for COVID-19, demonstrating that Defendant was the real party in interest
`under the DOH Contract;
`
`e. The conduct of the parties recognized the existence of the DOH Contract
`and its terms; therefore, Defendant assumed the rights and obligations of
`the DOH Contract.
`
`45.
`
`In breach of the assumed contract, Defendant has refused, despite due
`
`demand, to pay Plaintiff the sum of $117,600.00 for COVID-19 testing on behalf of
`
`Defendant, from on or about May 1, 2020, through and including August 31, 2021.
`
`46.
`
`By reason of the foregoing breach of the DOH Contract, Plaintiff has been
`
`damaged in the amount of $117,600.00, together with applicable pre-judgment interest
`
`thereon.
`
`FOURTH CLAIM FOR RELIEF
`Account Stated
`
`47.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “46” above with the same force and effect as if fully set forth
`
`herein.
`
`48.
`
`Plaintiff sent and rendered to Defendant the following statements of
`
`account and invoices for COVID-19 testing services provided by Plaintiff to Defendant:
`
`Invoice No.
`
`Invoice Date
`
`9188049931
`9188421410
`9188860720
`9189332201
`9189796023
`9190400856
`9190755455
`9191194150
`9191763725
`9192207996
`9192592343
`9193050044
`
`06/25/20
`07/28/20
`08/26/20
`09/25/20
`10/27/20
`11/24/20
`12/28/20
`01/26/21
`02/23/21
`03/26/21
`04/27/21
`05/25/21
`
`Invoice
`Amount
`$24,000.00
`$23,600.00
`$29,600.00
`$31,200.00
`$30,700.00
`$26,200.00
`$30,300.00
`$33,200.00
`$22,600.00
`$28,500.00
`$27,300.00
`$22,600.00
`
`Payment
`
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`$0.00
`
`Transfer
`Credits
`$22,400.00
`$21,900.00
`$27,500.00
`$28,200.00
`$28,100.00
`$24,900.00
`$28,400.00
`$31,200.00
`$12,500.00
`$10,400.00
`$2,100.00
`$0.00
`
`Total Balance
`Due
`$1,600.00
`$3,300.00
`$5,400.00
`$8,400.00
`$11,000.00
`$12,300.00
`$14,200.00
`$16,200.00
`$26,300.00
`$44,400.00
`$69,600.00
`$92,200.00
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 14 of 19
`
`9193507313
`9193978004
`9194766064
`
`06/25/21
`07/27/21
`08/26/21
`
`$24,700.00
`$500.00
`$200.00
`
`$0.00
`$0.00
`$0.00
`
`$0.00
`$0.00
`$0.00
`
`$116,900.00
`$117,400.00
`$117,600.00
`
`True and correct copies of these statements of accounts and invoices are collectively
`
`attached hereto, and incorporated herein, as Exhibit C.
`
`49.
`
`Defendant received, accepted and retained all of said invoices and account
`
`statements. Defendant did not raise an objection to Plaintiff’s invoices The New York
`
`DOH has explicitly agreed that $100 per COVID-19 test—which is the rate Plaintiff has
`
`charged—is reasonable, as reflected in Paragraph 7 of the DOH Contract. Moreover,
`
`Defendant agreed in Defendant’s Contract that $100 per COVID-19 test is reasonable.
`
`50.
`
`As a result of the foregoing, an account was taken and stated between
`
`Plaintiff and Defendant, which showed a balance, in the amount of $117,600.00, is due
`
`and owing by Defendant to Plaintiff.
`
`51.
`
`No part of said balance due in the amount of $117,600.00 has been paid by
`
`Defendant, despite due demand therefor.
`
`52.
`
`By reason of the foregoing, Defendant is presently indebted to Plaintiff in
`
`the sum of $117,600.00, together with applicable interest thereon.
`
`FIFTH CLAIM FOR RELIEF
`Costs and Attorneys’ Fees
`
`53.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “52” above with the same force and effect as if fully set forth
`
`herein.
`
`54.
`
`Defendant’s Contract includes a fee-shifting provision in Paragraph 3.2,
`
`which provides that in “the event Quest Diagnostics sends the account for collection
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 15 of 19
`
`and/or initiates litigation in order to collect overdue amounts, LTC Facility [Defendant]
`
`shall be liable for all costs and expenses of such collection and/or litigation including
`
`reasonable attorneys’ fees, court costs and expenses.” See Defendant’s Contract ¶ 3.2, Ex.
`
`B.
`
`55.
`
`Defendant never objected to any of the terms in the Agreement or the
`
`invoices submitted to them for the services, but they did accept the services.
`
`56.
`
`Quest demanded payment under the Agreement numerous times, prior to
`
`commencing this action.
`
`57.
`
`By reason of Quest having to enforce its rights by collection and litigation,
`
`Defendant is liable to Quest for Quest’s costs, expenses, and attorneys’ fees incurred in
`
`attempting to collect and litigate to enforce Defendant’s Contract and receive payment
`
`from Defendant, together with applicable pre-judgment interest thereon.
`
`SIXTH CLAIM FOR RELIEF
`Unjust Enrichment
`
`58.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “57” above with the same force and effect as if fully set forth
`
`herein.
`
`59.
`
`In the event that it is found that no contract exists between Plaintiff and
`
`Defendant, Defendant is liable to Plaintiff for the COVID-19 testing services it received
`
`from Plaintiff.
`
`60.
`
`It would be against equity and good conscience to allow Defendant to
`
`retain the benefit of Plaintiff’s COVID-19 testing services—and its corresponding ability
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 16 of 19
`
`to remain an ongoing operation under the Executive Order 202.30—without paying for it,
`
`particularly at the reasonable charge of $100 per test.
`
`61.
`
`Defendant has been unjustly enriched at Plaintiff’s expense in the
`
`principal amount of $117,600.00, plus pre-judgment interest.
`
`SEVENTH CLAIM FOR RELIEF
`Quantum Meruit
`
`62.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “61” above with the same force and effect as if fully set forth
`
`herein.
`
`63.
`
`During the period from on or about May 1, 2020, through and including
`
`August 31, 2021, Plaintiff rendered COVID-19 testing services to Defendant, and
`
`incurred expenses on Defendant’s behalf, in furtherance of Executive Order 202.30.
`
`64.
`
`Defendant accepted and received the benefits of Plaintiff’s services with
`
`knowledge that Plaintiff expected to be compensated for same.
`
`65.
`
`The fair and reasonable value of the services rendered by Plaintiff—for
`
`which payment by Defendant has not been made—equals or exceeds the sum of
`
`$117,600.00, which reflects the reasonable rate of $100 per COVID-19 test.
`
`66.
`
`By failing and refusing to pay Plaintiff for the services rendered,
`
`Defendant has been unjustly enriched.
`
`67.
`
`By reason of the foregoing, Plaintiff has been damaged in an amount to be
`
`determined at trial, but reasonably believed to be no less than $117,600.00, together with
`
`applicable interest thereon.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 17 of 19
`
`EIGHTH CLAIM FOR RELIEF
`Money Had and Received
`(FEMA Reimbursement)
`
`68.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs “1” through “67” above with the same force and effect as if fully set forth
`
`herein.
`
`69.
`
`In addition to its contractual liabilities as hereinbefore alleged, upon
`
`information and belief, Defendant was/is also entitled to reimbursement for expenses
`
`incurred for testing its employees and personnel for COVID-19 from the Federal
`
`Emergency Management Agency (“FEMA”).
`
`70.
`
`If, in fact, Defendant has applied for and has been reimbursed by FEMA
`
`for expenses it incurred in testing its employees and personnel for COVID-19, any such
`
`money received and possessed by Defendant, and for which it is benefitting, is money
`
`that in equity and good conscience should not be retained by Defendant, but should be
`
`turned over to Plaintiff, to whom it rightfully belongs by virtue of the COVID-19 testing
`
`it performed at the request of and for Defendant.
`
`71.
`
`By reason of the foregoing, the reimbursement of COVID-19 testing
`
`expenses provided by FEMA to Defendant is properly money had and received by
`
`Defendant that in equity and good conscience should be turned over to Plaintiff, the
`
`amount of which will have to be determined at trial, together with pre-judgment interest
`
`thereon.
`
`DEMAND FOR JURY TRIAL
`
`72.
`
`Pursuant to Federal Rule of Civil Procedure 38, Plaintiff demands a trial by
`
`jury in this matter.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 18 of 19
`
`PRAYER FOR RELIEF
`
`Plaintiff demands judgment against Defendant as follows:
`
`a. On its First Claim for breach of contract, awarding Plaintiff damages against
`Defendant in the amount of $117,600.00, together with applicable interest
`thereon;
`
`b. On its Second Claim for breach of contract, awarding Plaintiff damages
`against Defendant in the amount of $117,600.00, together with applicable
`interest thereon;
`
`c. On its Third Claim for breach of the DOH Contract, awarding Plaintiff
`damages against Defendant in the amount of $117,600.00, together with
`applicable interest thereon;
`
`d. On its Fourth Claim for account stated, awarding Plaintiff damages against
`Defendant in the amount of $117,600.00, together with applicable interest
`thereon;
`
`e. On its Fourth Claim for unjust enrichment, awarding Plaintiff damages against
`Defendant in the amount of $117,600.00, together with applicable interest
`thereon;
`
`f. On its Fifth Claim for collection and litigation costs, expenses, and reasonable
`attorneys’ fees, awarding Plaintiff damages against Defendant in the amount
`to be determined, together with applicable interest thereon;
`
`g. On its Sixth Claim for unjust enrichment, awarding Plaintiff damages against
`Defendant in the amount of $117,600.00, together with applicable interest
`thereon;
`
`h. On its Seventh Claim for quantum meruit, awarding Plaintiff damages against
`Defendant in the amount of $117,600.00, together with applicable interest
`thereon;
`
`i. On its Eighth Claim for money had and received, awarding Plaintiff damages
`against Defendant in an amount to be determined at trial, together with
`applicable interest thereon;
`
`j. Awarding Plaintiff costs and disbursements of this case, prejudgment interest,
`and such other and further relief as the Court may deem just and proper.
`
`

`

`Case 1:22-cv-00265-JLS Document 1 Filed 04/04/22 Page 19 of 19
`
`Dated: April 4, 2022
`Rochester, New York
`
`Respectfully Submitted,
`
`THE GLENNON LAW FIRM P.C.
`
`By_/s/ Peter J. Glennon______________
`Peter J. Glennon, Esq.
`Attorneys for Plaintiff
`Quest Diagnostics, Incorporated
`160 Linden Oaks,
`Rochester, NY 14625
`585-210-2150
`Email: PGlennon@GlennonLawFirm.com
`
`

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