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DOE v. NATIONAL BOARD OF PODIATRIC MEDICAL EXAMINERS

February 15, 2005.

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,
v.
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

OPINION

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, ...


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