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.
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
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
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
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 are taken from the parties' Local Civil Rule 56.1 Statements
and from the record,*fn4 and are not in conflict
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
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."
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, ...