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United States District Court, S.D. New York

February 15, 2005.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


The plaintiff Morris Sukoff ("Sukoff") has moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on his breach of contract claim against the defendant The National Board of Podiatric Medical Examiners ("NBPME" or the "Board") on the ground that NBPME did not consider Sukoff's appeal from the invalidation of his score on NBPME's July 2002 Part I Basic Science Examination (the "July 2002 Exam") in good faith, thereby breaching the covenant of good faith and fair dealing implicit in the agreement between the parties. Sukoff seeks a determination by the Court that his scores on the July 2002 Exam are valid, an order directing NBPME to release his scores, and an award of damages for the cost of exams and legal fees. For the reasons set forth below, the motion is denied.

  Prior Proceedings

  This action was commenced on June 3, 2003, when approximately twenty-six New York College of Podiatric Medicine ("NYCPM") students (collectively, the "Plaintiffs") filed a lawsuit against NBPME, the Chauncey Group International, Ltd. ("Chauncey"), NBPME's executive director, and the members of NBPME's board of directors. Plaintiffs asserted claims for breach of contract and defamation against NBPME and sought to compel NBPME to release Plaintiffs' scores on the July 2002 Exam, which scores had been Page 3 invalidated by NBPME on or about October 21, 2002. Plaintiffs further sought an order certifying the validity of their scores. Plaintiffs' claims against NBPME's executive director, the members of NBPME's board of directors and Chauncey were subsequently voluntarily dismissed.*fn1

  At the time of the filing of this action, Plaintiffs moved for a preliminary injunction compelling NBPME and Chauncey to validate and release their test scores taken on the July 2002 Exam. In an opinion dated June 19, 2003, this Court denied Plaintiffs' motion. See Doe v. Nat'l Bd. of Podiatric Med. Examiners, No. 03 Civ. 4034 (RWS), 2003 WL 21403698 (S.D.N.Y. June 19, 2003) ("Doe I").

  Thereafter, on July 7, 2003, NBPME filed its answer to the complaint and asserted counterclaims against certain Plaintiffs. Plaintiffs filed an amended complaint on October 17, 2003, and NBPME filed an amended answer with counterclaims on November 10, 2003.

  Plaintiffs subsequently moved for partial summary judgment on their breach of contract claim against NBPME, arguing that NBPME had breached an agreement between each Plaintiff and Page 4 NBPME embodied in NBPME's 2002 Bulletin of Information (the "Bulletin") by refusing to accept Plaintiffs' requests for hearings to appeal the invalidation of their scores under the appeal procedure set forth in the Bulletin. On April 29, 2004, the Court granted Plaintiffs' motion and ordered NBPME to conduct appeal hearings in accordance with the terms of the Bulletin and NBPME's contractual obligation to act in good faith for those Plaintiffs who renewed their requests for such hearings. See Doe v. Nat'l Bd. of Podiatric Med. Examiners, No. 03 Civ. 4034 (RWS), 2004 WL 912559, at *8-9 (S.D.N.Y. Apr. 29, 2004) ("Doe II") (concluding that Plaintiffs were "entitled to relief that comports with NBPME's contractual promise: the good faith consideration of their requests for a hearing"). Familiarity with both Doe I and Doe II is presumed.

  After receiving the Court's order, and in accordance with the Bulletin, NBPME selected three members of its board of directors to preside over appeal hearings and promptly scheduled hearings for the only plaintiffs who requested them, Charles Bahdi ("Bahdi") and Sukoff. (See NBPME, Opinion Regarding the Invalidation of Morris M. Sukoff's Score on the July 2002 Part I Basic Science Examination (the "NBPME Opinion"), attached as Exhibit A to the Affidavit of Warren Redlich sworn to Sept. 15, 2004 ("Redlich Aff."), at 1 n. 2.) A hearing was held for Sukoff and thereafter the Board issued the NBPME Opinion, which affirmed Page 5 the Board's invalidation of the July 2002 Exam and of Sukoff's score.

  The instant motion seeking summary judgment on the breach of contract claim*fn2 and reinstatement of Sukoff's score was heard on November 10, 2004 and marked fully submitted on November 29, 2004 following further submissions by each party.*fn3

  The Facts

  The facts are taken from the parties' Local Civil Rule 56.1 Statements and from the record,*fn4 and are not in conflict Page 6 except as noted below.

  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.

  Sukoff sat for NBPME's Part I Basic Science Examination, which was administered over a four-day period in July 2002. Before taking the July 2002 Exam, Sukoff entered into a contract with NBPME as outlined in the Bulletin.

  The Bulletin reserves to NBPME "the sole right to determine whether or not an examination is valid or invalid." (Bulletin at 11.)*fn5 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.) Page 7

  After the administration of the July 2002 Exam, NBPME's testing contractor, Chauncey, received evidence that examination content had been accessible to students at NYCPM both prior to and during the administration of the exam in the form of an anonymous mailing which enclosed printouts of five e-mails NYCPM students had sent during the administration of the July 2002 Exam. The e-mails showed that several NYCPM students had transmitted test content they recalled from the examination to a "2004" e-mail address. Sukoff testified during the hearing that e-mails sent to the "2004" e-mail address, which was really "," were automatically distributed to the entire NYCPM class of 2004, of which Sukoff was a member. (NBPME Opinion at 7.)

  The anonymous mailing Chauncey received in September 2002 contained a cover note stating:

(Id. at 2.) Enclosed with this note were printouts of copies of five e-mails sent by five different members of the NYCPM class of 2004 (who identified themselves by name as the authors of the e-mails) to the above-referenced "2004" group e-mail address. All of these e-mails contained content of the July 2002 Exam and were sent during the four-day period in which the test was administered. (See id. at 2-3.) Page 8

  For instance, NYCPM student Chau Phan ("Phan") sent an email on July 10, 2004, the second day on which the July 2002 Exam was administered. The e-mail's "subject" was "my board questions," and the communication began by stating, "Good luck! Here are some of my questions though may be very choppy." (Id. at 3.) Phan then proceeded to list numerous questions he recalled from his Part I examination. At the end of his message, Phan added, "Hope any of it helps, chau." (Id.) Another e-mail, from NYCPM student Gerald Mauriello, Jr., and also sent on July 10, 2004, began by stating: "Hey all, Good luck on the boards. Here are some highlights I can remember." (Id.)*fn6

  Chauncey concluded that the integrity of the entire test in New York was compromised by the e-mail evidence and that it was unable to determine whether NYCPM students' scores on the July 2002 Exam reflected actual knowledge, prior access to test content, or some combination of the two. Chauncey recommended that the scores of all NYCPM students on the July 2002 Exam be invalidated.

  NBPME accepted Chauncey's recommendation and invalidated the NYCPM students' scores. NBPME offered all NYCPM candidates an opportunity to take a specially scheduled re-test of the examination, free of charge, in January 2003. Sukoff took the January 2003 re-test at no charge but did not achieve a passing Page 9 score. He has since taken NBPME's Part I examination two additional times, but has failed on each occasion. (See NBPME Opinion at 9.) He has also failed NBPME's Part II examination on two separate occasions. (See id.)

  Both Bahdi's and Sukoff's hearings were conducted on June 11, 2004, in Princeton, New Jersey. During the hearings, which lasted several hours, Bahdi and Sukoff testified on their own behalf and presented witnesses and evidence in support of their appeal of NBPME's decision to invalidate their scores on the July 2002 exam. In addition to his own testimony, Sukoff presented testimony from his mother and fiancee.

  Sukoff, his mother, and his fiancee all testified that Sukoff stayed at his parents' home before taking the exam and that they had no Internet access at that home. No testimony was offered by any party indicating that Sukoff had any access to the e-mails until after he had taken the July 2002 Exam.

  Both Dr. Charles W. Gibley, Jr., Ph.D., NBPME's Executive Director ("Dr. Gibley"), and Psychometrician Jay W. Breyer, Ph.D., Managing Principal of Chauncey ("Dr. Breyer"), testified during the hearing*fn7 that the Board's, and Chauncey's, primary focus and Page 10 concern in this matter, as well as with respect to all NBPME examinations, is the integrity and validity of the examination itself. (See NBPME Opinion at 13.) Both Drs. Gibley and Breyer described the sequence of events leading to the invalidation of Sukoff's scores. (See id. at 2.) Dr. Breyer further testified during the hearing that Sukoff passed his exam by two questions and that only two of the allegedly compromised questions were on Sukoff's exam.

  In advance of his hearing, NBPME provided Sukoff with a notice setting forth the date, time and location of the hearing; identifying the panel of Board members who would preside over the hearings (the "Panel"), and enclosing a list of the witnesses NBPME intended to call at the hearings and the procedures which would govern the hearings. (See id. at 1.) The hearing was conducted in accordance with the provisions of the Appeal Procedure section of the Bulletin.

  During the hearing, Sukoff was given the opportunity to testify and present evidence, and to be represented by counsel, in accordance with the provisions of the Bulletin, and he was in fact represented by two attorneys. Sukoff was allowed to, and did, cross-examine NBPME's witnesses.

  After the hearing concluded, the Panel met to review and consider the evidence, weigh the credibility of the witnesses, and Page 11 make a preliminary determination regarding the outcome of the appeal. The Panel prepared a draft opinion for NBPME and circulated the draft to NBPME's board of directors for its review and consideration.

  The Panel subsequently presented its findings and recommendations to the entire Board. The Board considered and accepted the Panel's recommendations and findings. The Board thereafter issued the NBPME Opinion, dated July 20, 2004. In the Opinion, it was explained that,

NBPME does not know whether Dr. Sukoff is "innocent" or not. Based upon the evidence presented during the hearing, however, the Board finds that the NYCPM Class of 2004 devised a scheme, or at least participated in misconduct relating to the exam, whereby students who took the exam emailed the test content they remembered to all other members of their class, in order to assist those who had not yet taken the exam. This type of conduct is strictly prohibited by the Bulletin of Information, and is grounds for invalidating candidates' scores on the exam.
(NBPME Opinion at 12.) The NBPME Opinion stated the Board's hearing determination regarding Sukoff as follows:
Thus, while the Board does not have specific evidence that Dr. Sukoff engaged in misconduct at the time of the July 2002 test, his result on the test was properly invalidated by the Board, because it was tainted by the misconduct which occurred with respect to the examination as a whole.
(Id.) Page 12

  The Summary Judgment Standard

  In Doe II, the standard which must be applied in determining motions for summary judgment was set forth as follows:

Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 350 F.3d 329, 338 (2d Cir. 2004); see generally 11 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.11 (3d ed. 1997 & Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
"The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
Page 13

 Doe II, 2004 WL 912599, at *2-3.

  The Board's Determination Was Neither Arbitrary Nor Irrational

  "`Implicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance'. . . ." Doe II, 2004 WL 912599, at *8 (quoting Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 979, 663 N.E.2d 289, 291 (N.Y. 1995)). Encompassed within the implied obligation of each promisor to exercise good faith is a pledge that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Dalton, 87 N.Y.2d at 389, 639 N.Y.S.2d at 979, 663 N.E.2d at 291 (internal citation and quotation marks omitted). "Where the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion." Id. at 389, 639 N.Y.S.2d at 979, 663 N.E.2d at 291 (internal citation omitted).

  As the New York Court of Appeals recognized in Dalton, the leading case in New York on the educational testing contractual issues raised here, "courts as a matter of policy are reluctant to intrude upon academic discretion in educational matters. . . ." Id. at 394, 639 N.Y.S.2d at 982, 663 N.E.2d at 294. This is so because, Page 14


When a standardized testing service reports a score, it certifies to the world that the test-taker possesses the requisite knowledge and skills to achieve the particular score. Like academic credentials, if courts were to require testing services to release questioned scores, the value of these credentials from the point of view society would be seriously undermined.
Id. at 394, 639 N.Y.S.2d at 982, 663 N.E.2d at 294 (internal citation and quotation marks omitted); accord Doe I, 2003 WL 21403698, at *3 (observing that the "`reluctance to interfere? with the exercise of academic discretion is motivated by sound considerations of public policy'") (quoting Dalton, 87 N.Y.2d at 393, 639 N.Y.S.2d at 982, 663 N.E.2d at 294). Accordingly,


[S]o long as the test-provider "fulfills its contractual obligation to consider relevant material provided by the test-taker and otherwise acts in good faith, the testing service — not the courts — must be the final arbiter of both the appropriate weight to accord that material and the validity of the test score. This Court will not interfere with that discretionary determination unless it is performed arbitrarily or irrationally."
Doe II, 2004 WL 912599, at *8 (quoting Dalton, 87 N.Y.2d at 392, 639 N.Y.S.2d at 981, 663 N.E.2d at 293). Since there is no issue of material fact in dispute, it is appropriate to consider the issue presented by Sukoff's motion, specifically, whether or not the Board acted in good faith with respect to its determination of Sukoff's appeal.

  The undisputed facts in the record demonstrate that NBPME performed its obligations with respect to Sukoff's appeal hearing Page 15 and the Board's ultimate determination of that appeal neither arbitrarily nor irrationally. NBPME complied with all of the provisions of the Appeal Procedure section of the Bulletin in conducting and considering Sukoff's appeal. Sukoff was given the opportunity to testify and present whatever evidence he desired to the Panel. He was also given the opportunity to be represented by counsel, and was represented by two attorneys at his hearing. Sukoff was allowed to, and did, cross-examine NBPME's witnesses. Following the hearing, the Panel met to review and consider all of the testimony presented by Sukoff as well as all of the other evidence and testimony provided at the hearing. Thereafter, the Panel prepared a draft opinion for NBPME which was circulated to and reviewed by NBPME's board of directors. Following the acceptance of the Panel's recommendations and findings, NBPME issued a lengthy and detailed opinion setting forth its findings and addressing various arguments raised by Sukoff and his attorney.

  The actions and conduct of NBPME are consistent with those of other testing organizations that have been found in other cases to have acted in good faith. For example, in Langston v. ACT, 890 F.2d 380 (11th Cir. 1989), the defendant testing company canceled a student's score on a college entrance examination due to its suspicion that the student had cheated. The testing company, ACT, had expressly reserved the right to cancel scores in which it did not have confidence in the registration materials provided to the plaintiff. See Langston, 890 F.2d at 385-86. In considering Page 16 the plaintiff's claim that ACT had breached its contract, the court held that whether ACT had acted in good faith, and not whether plaintiff cheated, was the issue:

Under the governing law, the outcome of plaintiff's case does not turn on whether or not plaintiff cheated on his exam, but only on whether or not ACT carried out its contractual obligations in good faith.
Id. at 385 n. 9. The court held that ACT had acted in good faith in exercising its contractual right to cancel Langston's test score where it had engaged in an extensive investigation, had offered the plaintiff a retest, and had offered to arbitrate the dispute. Id. at 387.

  Similarly, in Murray v. Educational Testing Service, 170 F.3d 514 (5th Cir. 1999), the court held that the defendant, Educational Testing Service ("ETS"), had acted in good faith in refusing to release a high school student's SAT score due to its suspicion that he had cheated. Among other things, the court cited the fact that ETS had allowed the plaintiff to submit evidence supporting the validity of his score, informed the plaintiff of his right to seek independent review, and ultimately allowed the plaintiff to retake the test as evidence of ETS' fulfillment of its duty of good faith. See Murray, 170 F.3d at 516. As was the case in Langston, the Murray court took note of the fact that the contract at issue reserved to ETS the right to withhold any scores ETS had reason to believe were not valid. See id. Page 17

  Finally, in a case involving the invalidation of the scores of podiatry students at Barry University's School of Podiatric Medicine in Miami-Dade County, Florida, on the same July 2002 Exam at issue here, Maupin v. National Board of Podiatrict Medical Examiners, Inc., No. 03-20011-CIV-ALTONAGA/Bandstra, slip op. (S.D. Fla. Oct. 28, 2004), the court concluded that NBPME acted in good faith in carrying out the court's prior order directing NBPME to provide each plaintiff with a hearing, conducted in good faith, as provided by the Appeals Procedure of the Bulletin. As the Maupin court explained,

During the appeal hearings, each side was represented by counsel, and a court reporter transcribed the proceedings. Each side also was entitled to present evidence, call witnesses, and cross-examine the witnesses. Finally, NBPME issued written opinions in which it evaluated the evidence and gave support for its decisions. These factors indicate that NBPME took the hearings seriously and did not act in an arbitrary or capricious manner. While Plaintiffs argue that the evidence presented to the NBPME appeal panel should be evaluated differently, the Court declines to second-guess the panel's conclusions regarding credibility of the witnesses or the inferences that it drew from the evidence.
Maupin, slip op. at 11. Significantly, in Maupin, as here, NBPME conceded that it did not have evidence that each plaintiff had acted improperly at the time of the July 2002 Exam, but upheld the invalidation of the scores on appeal based upon its determination that credible evidence existed that the integrity of the entire test was compromised with respect to the students at Barry University. See id. at 6. Page 18

  Sukoff has not challenged the adequacy of the procedure followed by NBPME with respect to his hearing. Rather, he contends that NBPME's finding that his score on the July 2002 test was tainted is without basis, because Sukoff, his mother, and his fiancee all testified during the hearing that during the week in which the test was administered Sukoff was staying at his mother's home and did not have access to his e-mail account or the Internet. Sukoff argues that NBPME refused to consider the information he submitted as part of his appeal, thereby failing to comply in good faith with the Board's own procedures and breaching the contract with Sukoff under Dalton.

  As was acknowledged in the NBPME Opinion, the Board does not know whether Sukoff was "innocent" or whether he engaged in any misconduct with respect to the July 2002 Exam. NBPME further concluded that it did not have or know about any evidence that Sukoff engaged in misconduct or acted improperly at the time of the July 2002 Exam. (See NBPME Opinion at 11.) Nonetheless, NBPME found that there was "sufficient, competent and credible evidence establishing that a breach occurred at NYCPM with respect to the security of the July 2002 Part I examination, and that the integrity of the examination itself was compromised as a result of this breach." (Id.)

  The fact that NBPME based its determination that Sukoff's score should not be validated and released on evidence not specific Page 19 to his particular conduct on or about the time the July 2002 Exam was administered does not render the NBPME's determination arbitrary or irrational, or otherwise suggest, much less demonstrate, that NBPME failed to act in good faith with respect to Sukoff's appeal. As this Court has previously explained in Doe I, an individual candidate's conduct is not the sole relevant factor in determining whether his or her score on NBPME's Part I Examination is validated and released under the terms of the Bulletin:

Although it is true that the stated purpose of the hearing is focused on finding whether "the candidate acted improperly," the logical implication is that a determination must be made whether a candidate's score is tainted by improper action. . . . The significant consideration in deciding whether or not to invalidate a test score is thus not whether the individual candidate engaged in misconduct, but whether the candidate's test results are tainted by misconduct. As exemplified by this case, NBPME may have reason to invalidate candidates' test results even when they are innocent.
Doe I, 2003 WL 21403698, at *5. Further, in Doe II, "[t]he possibility, or even likelihood, that NBPME may decide, after a hearing, not to reinstate a plaintiff's score for reasons unrelated to whether that particular plaintiff acted improperly in connection with the July 2002 Exam . . ." was specifically acknowledged. Doe II, 2004 WL 912599, at *9 n. 11.

  The conclusions reached in Doe I and Doe II in this regard are consonant with the accepted industry standards which Page 20 apply to high-stakes tests, such as NBPME's Part I Basic Science Examination, used by governmental agencies to determine whether an individual will be licensed to provide treatment to patients. These very standards were addressed at the hearing, during which Dr. Breyer testified that the relevant industry standards, published jointly by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education in a volume entitled Standards for Educational and Psychological Testing (the "Standards"), provide that there can be circumstances in which a testing organization can and should invalidate a candidate's test results because of misconduct by one or more other test takers on the same exam. (See NBPME Opinion at 12.) Dr. Breyer cited an excerpt from the Standards, quoted in the NBPME Opinion:

The test taker is obligated to respect the copyrights of the test publisher or sponsor on all test materials. This means that the test taker will not reproduce the items without authorization nor disseminate, in any form, material that is clearly analogous to the reproduction of the items. Test takers, as well as test administrators, have the responsibility not to compromise security by divulging any details of the test items to others nor may they request such details from others. Failure to honor these responsibilities may compromise the validity of test score interpretations for themselves and for others.
(Id. at 12.)

  Both Dr. Gibley, NBPME's Executive Director, and Dr. Breyer of Chauncey testified during the hearing that the Board's, Page 21 and Chauncey's, primary focus and concern in this matter, as well as with respect to all NBPME examinations, is the integrity and validity of the examination itself. (See id. at 13.) Here, because of the misconduct which occurred at NYCPM, evidence of which was presented at the hearing, Chauncey was unable to determine which, if any, of the NYCPM students' scores on the July 2002 Exam were valid, and whether the candidates' test results reflected actual knowledge or prior access to test content, or some combination of the two. (See id.) Because the entire testing process was tainted by the misconduct which occurred, neither NBPME nor Chauncey could vouch for the reliability and validity of the NYCPM students' test results. Neither the Board nor Chauncey had the capacity or the procedures to determine which results were valid and reliable.

  In sum, NBPME's determination of Sukoff's appeal was based on the weighing of testimonial and documentary evidence, as well as consideration of the relevant industry standards with respect to testing integrity, and is not, as Sukoff urges, without rational basis. Contrary to Sukoff's suggestion, the fact that the Board's ultimate determination upheld the invalidation of Sukoff's scores based on the Board's finding of sufficient and credible evidence concerning misconduct which occurred at NYCPM does not show that the Board failed to consider the evidence presented by Sukoff and the record as well as the NBPME Opinion demonstrate that Sukoff's evidence was weighed and that credibility concerns Page 22 expressly addressed. Compare Maupin, slip op. at 11 (rejecting the argument that NBPME had failed to conduct appeal hearings in good faith merely because the plaintiffs argued that the evidence they had presented should have been treated differently), with Dalton, 87 N.Y.2d at 391-92 & n.*, 639 N.Y.S.2d at 981 & n.*, 663 N.E.2d at 293 & n.* (explaining that "[t]he critical question . . . is whether the Board of Review made any effort to consider th[e] relevant information submitted by [the plaintiff]" and concluding that the defendant had failed to comply in good faith with its obligations where the testimony of members of the review panel demonstrated that they had "utterly failed" to evaluate information submitted by the plaintiff). Likewise, and for the reasons set forth in the Bulletin and in NBPME's counsel's letter of November 17, 2004, the fact that there were two compromised questions on Sukoff's exam and that Sukoff passed his exam by two questions does not necessarily demonstrate that Sukoff would have passed the July 2002 Exam if the compromised questions were not considered due to the manner in which the July 2002 Exam was administered and passing scores determined.

  In New York, an arbitrary action as one which is "`without sound basis in reason and is generally taken without regard to the facts.'" Heintz v. Brown, 80 N.Y.2d 998, 1001, 592 N.Y.S.2d 652, 654, 607 N.E.2d 799, 801 (N.Y. 1992) (quoting Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839, 313 N.E.2d 321, 325 (N.Y. 1974)). The evidence in the record demonstrates Page 23 that the Board's decision had a sound basis (even if Sukoff disagrees with the decision) and that NBPME fully considered all of the relevant facts. Sukoff has thus failed to establish that NBPME acted either arbitrarily or irrationally with respect to the determination of Sukoff's appeal. In the absence of any showing that NBPME acted arbitrarily or irrationally, there may be no finding that NBPME failed to conduct Sukoff's hearing in good faith and Sukoff's motion is, accordingly, denied.

  As Sukoff has cited no authority or contractual provision demonstrating his entitlement to the attorney's fees and costs sought or his entitlement to the fees paid to take subsequent NBPME examinations, Sukoff's request in this regard is denied.


  For the reasons set forth above, Sukoff's motion for summary judgment is denied, as is his request for fees and costs.

  As specific performance of NBPME's contractual obligations was ordered in Doe II, NBPME conducted appeal hearings for the only two Plaintiffs who remained interested in pursuing this matter, Sukoff is the sole Plaintiff who has sought further relief, and, for the reasons set forth above, there is no evidence in the record based upon a preponderance of which a reasonable jury could find that NBPME failed to act in good faith with respect to Page 24 its determination of Sukoff's appeal under the terms of the Bulletin, Plaintiffs are directed to show cause, on submission and within ten (10) days of entry of this opinion and order, why summary judgment dismissing the complaint shall not be entered by the Court sua sponte. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir. 2000) ("District courts are well advised to give clear and express notice before granting summary judgment sua sponte, even against parties who have themselves moved for summary judgment.").

  It is so ordered.

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