PETER DALTON, &C., RESPONDENT, v. EDUCATIONAL TESTING SERVICE, &C.,
APPELLANT.
87 N.Y.2d 384, 663 N.E.2d 289, 639 N.Y.S.2d 977
December 7, 1995
(Case Commentary by Editorial Board)
2 No. 263 (1995 NY int. 281)
Decided December 7, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Philip H. Schaeffer, for Appellant.
Vincent F. Nicolosi, for Respondent.
KAYE, CHIEF JUDGE:
The primary question before us is whether defendant, Educational
Testing Service (ETS), a standardized testing firm, complied with
procedures specified in its contract with high school senior Brian
Dalton in refusing to release Dalton's Scholastic Aptitude Test (SAT)
score. Because the factual findings underlying the trial court's
determination that ETS failed to act in good faith in following those
procedures were affirmed by the Appellate Division, have support in
the record and are consequently beyond the scope of our review, we
conclude--as did the trial court and Appellate Division--that ETS
breached its contract with Dalton. Though we agree, moreover, with the
courts below that specific performance is the appropriate remedy, we
nevertheless conclude that the promised performance was good faith
compliance with the stated procedures, not release of the questioned
scores as ordered by those courts.
I.
In May 1991, Brian Dalton took the SAT, which was administered by ETS,
at Holy Cross High School in Queens where Dalton was a junior. Six
months later, in November, he took the examination a second time, as a
senior, this time at John Bowne High School in Queens, and his
combined score increased 410 points.
Because Dalton's score increased by more than 350 points, his test
results fell within the ETS category of "Large Score Differences" or
"discrepant scores." In accordance with ETS policy, members of the ETS
Test Security Office therefore reviewed his May and November answer
SNIPPETS:
The primary question before us is whether defendant, Educational Testing Service (ETS), a
Because the factual findings underlying the trial court's determination that ETS failed to
Though we agree, moreover, with the courts below that specific performance is the appropriate
Six months later, in November, he took the examination a second time, as a senior, this time
Upon a finding of disparate handwriting, the answer sheets were submitted to a document
Dalton's case was then forwarded to the Board of Review, which preliminarily decided that
At this point plaintiff Peter Dalton, father and natural guardian of Brian Dalton, filed an
It too found that ETS ignored the documentation provided by Dalton and considered only the
Implicit in all contracts is a covenant of good faith and fair dealing in the course of
Where the contract contemplates the exercise of discretion, this pledge includes a promise
The duty of good faith and fair dealing, however, is not without limits, and no obligation
The parties here agreed to the provisions in the Registration Bulletin, which expressly
The dissent urges that because the trial court and Appellate Division relied in part on ETS'
Given the reliance that students, educational institutions, prospective employers and others
Accordingly, the Appellate Division order should be modified in accordance with this Opinion,
Thus, it seems indisputable that the ultimate determinations of the courts below --that ETS
As the Chief Judge concludes, ETS was contractually obligated to consider any relevant
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