FILED: NEW YORK COUNTY CLERK 04/18/2023 02:36 PM INDEX NO.

154343/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/12/2023

SUPREME COURT OF NEW YORK

COUNTY OF NEW YORK
VANESSA SANTOS PALMA,
NYSCEF CASE
Plaintiff,
No.:__________________
v.
SUMMONS
BR TESTING LLC AND BRIAN
BATTISTA, JOINTLY AND SEVERALLY,

Defendants.

TO: BR Testing LLC

c/o Brian Battista
11 Ocean Avenue
Rockaway Point, New York 11697

Brian Battista
c/o BR Testing LLC
11 Ocean Avenue
Rockaway Point, New York 11697

YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to
serve a copy of your answer on the Plaintiff’s attorney within twenty (20) days after the
service of this Summons, exclusive of the date of service, where service is made by delivery
upon you personally within the State, or within thirty (30) days after completion of service
where service is made in any other manner. In case of your failure to appear or to answer,
judgment will be taken against you by default for the relief demanded in the complaint.

Plaintiff designates New York County as the place of trial.

Venue is proper in New York County and this Court under C.P.L.R. § 503 because
a substantial part of the events or omissions giving rise to the claims in the lawsuit occurred
in New York County.

Dated: April 18, 2023

New York, New York

LIPSKY LOWE LLP

420 Lexington Avenue, Suite 1830
New York, NY 10170-1830
Tel: 212.392.4772
Fax: 212.444.1030

Attorneys for Plaintiff

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SUPREME COURT OF NEW YORK

COUNTY OF NEW YORK
VANESSA SANTOS PALMA, NYSCEF CASE

Plaintiff,
No.: ____________________
v.
COMPLAINT
BR TESTING LLC AND BRIAN
BATTISTA, JOINTLY AND JURY TRIAL DEMANDED
SEVERALLY.

Defendants.

Plaintiff Vanessa Santos Palma hereby alleges through her attorneys, Lipsky Lowe

LLP, as against Defendants BR Testing LLC and Brian Battista as follows:

NATURE OF THE ACTION

1. Plaintiff asserts that Defendants willfully violated the New York Labor Law

(“Labor Law”) by retaliating against her for complaining about them engaging in insurance

fraud.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this matter because a substantial part of the

events or omissions giving rise to the claims occurred in the State of New York, and

Defendants are licensed to and do, do business in the State of New York.

3. Venue is proper in New York County and this Court under C.P.L.R. § 503

because a substantial part of the events or omissions giving rise to the claims in the lawsuit

occurred in New York County.

4. Plaintiff demands a trial by jury

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THE PARTIES

5. Plaintiff was, at all relevant times, an adult individual, residing in New

York, New York, New York County.

6. BR Testing LLC is a domestic limited liability company that is organized

under New York Law and has its corporate headquarters at 11 Ocean Avenue, Rockaway

Point, New York.

7. Brian Battista is an individual who resides, during all relevant times, in

Rockaway Point, New York.

STATEMENT OF FACTS

Background1

8. ProPhase Labs, according to its website, provides a broad array of clinical

diagnostic and testing services, including COVID-19 testing.

9. ProPhase Labs, upon information and belief, contracts with BR Testing for

BR Testing to hire employees to work at remote COVID-19 testing locations.

10. Brian Battista is the Chief Executive Officer of BR Testing.

11. Defendants own and operate rapid COVID-19 testing sites throughout New

York City.

12. When Defendants test someone for COVID, they get paid by that person’s

insurance company.

13. Defendants employed Plaintiff from February 6 to February 8, 2023 at three

testing site locations: 140 Wadsworth Avenue, New York, New York (February 6), 86th

1
These headers are only for organizational purposes.

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Street and 3rd Avenue in Manhattan (February 7), and 177 Dyckman Street, New York,

New York (February 8).

14. Defendant Battista disregarded all corporate formalities with the two

entities for which he is Chief Executive Officer: B and R Testing LLC and BR Testing

LLC.

15. Plaintiff was told she was being employed by BR Testing LLC, while

receiving payment from B and R Testing, even after B and R Testing’s January 31, 2023

dissolution date with the State of New York Division of Corporations.

16. B and R Testing LLC and BR Testing LLC are a single, integrated

enterprise.

17. Plaintiff’s manager, Suave, reported to Defendant Battista.

18. Defendant Battista regularly participated in group chat with Defendants’

employees on various topics, including telling them their compensation structure and how

to perform their duties.

Defendants’ Policy and Practice of Insurance Fraud

19. It is Defendants’ policy and procedure to have their employees take COVID

tests and use another person’s insurance information to submit that test so that person’s

insurance company pays the Defendants.

Retaliation

20. Plaintiff had a quota on the number of tests she must perform each day.

21. On February 7, 2023, Plaintiff’s manager, Suave, left her a voice message

telling her to submit tests using another person’s insurance information, thereby

committing insurance fraud.

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22. Plaintiff has saved a copy of this voice message.

23. On February 8, 2023, Suave called Plaintiff to learn how she was doing

reaching her quota. When she told him that she had not reached her quota, Suave told

Plaintiff to test herself for COVID but to submit the test using a family or friend’s insurance

information so Defendants could bill that person’s insurance company for the test. She

objected to doing so, believing that would violate a law, rule or regulation.

24. After she told Suave she would not use her friends or family’s insurance

information, Suave texted Plaintiff to use his daughter’s information when submitting it to

the insurance company. (Exhibit A). She objected to doing so, believing that would violate

a law, rule or regulation.

25. After Plaintiff again objected to what Suave was instructing her to do, Suave

called her again and she told him she does not feel comfortable doing what he is asking.

He, in response, told Plaintiff that “everyone does it and no one is going to know” and

instructed Plaintiff on how to do it so the insurance companies would not know what was

happening. She, again, objected to what he was asking, believing it would violate a law,

rule or regulation.

26. After Plaintiff repeatedly objected to Defendants’ practice of committing

insurance fraud, Defendants fired her.

27. Defendants fired her because she objected to their policy and practice of

committing insurance fraud, which she reasonably believed to be unlawful.

28. No legitimate, non-retaliatory reason exists for Defendants to fire Plaintiff.

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FIRST CAUSE OF ACTION

VIOLATION OF NEW YORK’S WHISTLEBLOWER LAW

29. Plaintiff repeats every allegation of the preceding paragraphs as if set forth

in this cause of action.

30. Defendants were “employers” within the meaning of N.Y. Lab. Law §§ 190,

196-d, 615(5), 652 and supporting New York State Department of Labor Regulations and

employed Plaintiff.

31. Defendants jointly employed Plaintiff.

32. Defendant Batista is individually liable.

33. Plaintiff complained to Defendants about their policy and practice of

insurance fraud, which she reasonably believed violated a law, rule or regulation.

34. Defendants terminated Plaintiff for her complaints about them engaging in

insurance fraud, violating N.Y. Lab. § 740.

35. No legitimate, non-retaliatory reasons exist for the adverse action

Defendants took against Plaintiff.

36. Defendants’ actions against Plaintiff were willful, malicious and wanton.

37. Defendants are liable to Plaintiff for her loss of wages, liquidated damages,

punitive damages, and attorneys’ fees and expenses.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court grant the following

relief:

1. Accepts jurisdiction over this matter.

2. Impanels and charges a jury with respect to the causes of action.

3. Awards Plaintiff the following damages against Defendants:

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a. Back pay, front pay, and all benefits along with pre and post

judgment interest;

b. An award of punitive damages;

c. An award for liquidated damages, prejudgment and post-judgment

interest;

d. Attorneys’ fees, costs and expenses to the fullest extent permitted

by law; and

e. Any other relief that this Court deems just and equitable.

Dated: New York, New York

April 18, 2023

LIPSKY LOWE LLP

s/ Douglas B. Lipsky
Douglas Lipsky
420 Lexington Avenue, Suite 1830
New York, New York 10170-1830
212.392.4772
doug@lipskylowe.com
Attorneys for Plaintiff

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