April 29, 2004.
JOHN DOE, student of the New York College of Podiatric Medicine, GERALD MAURIELLO, JR., MORRIS SUKOFF, DANIEL GODFREY, SUPREET GHUMAN, KERRI LEE, HENRIETTA I. OBIDIOBO, MARY THOMAS, APRIL BAILEY, MARK GASPARINI, GABRIELA MENDEZ, RACJARA PUROHIT, MARK MORANO, ANKUR OHARIA, CARL JEAN, CHARLES BAHDI, DANY SABBOUR, MIKA HAYASHI, MIKHAIL BURAKOVSKIY, ILONA BARLAM, SERGEY FEDASHOV, DERRICK JACKSON, MARINA GREYMAN, EMANUEL SERSI, JASON P. GALANTE, JOYCE M. JENKINS and STANLEY IDICULLA, Plaintiffs, -against- THE NATIONAL BOARD OF PODIATRIC MEDICAL EXAMINERS, ROBERT A. CHRISTMAN, JEFFERY S. GERLAND, MURRAY B. GOLDSTEIN, MICHAEL J. HRILJAC, JOHN H. McCORD, NANCY G. ROZRAN, KARA L. SCHMITT, STEPHEN F. STERN, MICHAEL L. STONE, STUART L. TESSLER, RICHARD VIEHE, STUART J. WERTHEIMER and CHARLES W. GIBLEY, JR., individually and in their roles as officeres and members of the Board of NBPME, and THE CHAUNCEY GROUP INTERNATIONAL, LTD., Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiffs, podiatry students at the New York College of Podiatric
Medicine ("NYCPM"), have moved for partial summary judgment on their
breach of contract claim against defendant National Board of Podiatric
Medical Examiners ("NBPME"). For the reasons set forth below, this motion
is granted, and NBPME is ordered to provide a hearing to those plaintiffs
who renew their requests for same as set forth below.
This action was commenced on June 3, 2003 when plaintiffs filed their
complaint and an order to show cause seeking a preliminary injunction
compelling defendants NBPME and Chauncey Group International, Ltd.
("Chauncey") to release plaintiffs' scores from the July 2002 Part I
NBPME Examination and to certify the validity of those scores. The
request for a preliminary injunction was denied in an opinion dated June
19, 2003, familiarity with which is assumed. See Doe v. National Bd.
of Podiatric Examiners, No. 03 Civ. 4034 (RWS), 2003 WL 21403698
(S.D.N.Y. June 19, 2003) ("Doe I").
The instant motion was argued on December 10, 2003, and marked fully
submitted at that time.*fn1 The Facts
The facts are set forth based upon the undisputed portions of the
attorney affidavit submitted by plaintiffs, the Local Rule 56.1 statement
submitted by NBPME and the record, and are undisputed except as noted
NBPME provides a series of examinations which are used to certify the
proficiency of podiatric physician candidates. The results of these
examinations are used by state licensing boards and other agencies to
determine whether candidates have the minimum knowledge and competencies
necessary to practice podiatric medicine, and whether to license such
candidates as doctors of podiatric medicine.
Plaintiffs sat for the NBPME Part I Examination adminis-tered in July
2002 (the "July 2002 Exam"). Prior to taking the July 2002 Exam, each
plaintiff entered into a contract with NBPME embodied in NBPME's Bulletin
of Information (the "Bulletin"). Each plaintiff paid $625 to take the
July 2002 Exam.
The Bulletin reserves to NBPME "the sole right to determine whether or
not an examination is valid or invalid." (Bulletin at 11.) It further
informs examination candidates that "any attempt to reproduce all or part of an examination is strictly
prohibited," and "examination scores may be invalidated in the event of
this type of suspected breach." (Id.)
After the administration of the July 2002 Exam, Chauncey received
evidence that the content of the examination had been accessible to
students at certain schools of podiatric medicine both prior to and
during the administration of the test. Chauncey investigated the
distribution and availability of documents containing secure test
questions and, as a result of its investiga-tion, recommended to NBPME
that the scores of students at four of the seven schools of podiatric
medicine in the United States, including NYCPM, on the July 2002 Exam be
invalidated. NBPME accepted Chauncey's recommendation and invalidated the
scores of the students at NYCPM and three other schools.
In conjunction with its investigation, Chauncey received and forwarded
to NBPME an anonymous mailing which enclosed various e-mails NYCPM
students had purportedly sent during the administra-tion of the July
2002 Exam. In the e-mails sent to Chauncey, several NYCPM students,
including some plaintiffs, transmitted test content they had recalled
from the examination to a "2004" group e-mail address. This type of
effort to reproduce the content of the examination is prohibited by the
Bulletin. On or about October 21, 2002, plaintiffs received a notice from NBPME
indicating that NBPME had declared the scores of all NYCPM students on
the July 2002 Exam invalid and that NBPME had directed Chauncey to
withhold plaintiffs' scores.
Plaintiffs thereafter requested hearings to appeal NBPME's
Under the heading "Appeal Procedure," the Bulletin provides that:
If a candidate's scores are withheld or canceled,
that candidate may, within 15 business days of the
notifica-tion, submit a written request for a
hearing. The purpose of the hearing will be to
determine whether there exists sufficient,
competent, and credible evidence that the
candidate acted improperly at the time of the
National Board examinations. The time, date, and
place of the hearing will be set by the National
(Bulletin at 8.)
By a letter dated November 21, 2002, NBPME denied plaintiffs' requests
on the grounds that the appeal procedure set forth in the Bulletin was
not available to them, as it applied only when NBPME had withheld or
canceled an individual candidate's ...
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