Balaklaw v. American Bd. of Anesthesiology, Inc.

• Decision Date: 08 November 1990
• Citation: 149 Misc.2d 11,562 N.Y.S.2d 360
• Parties: Lee A. BALAKLAW, M.D., Plaintiff, v. The AMERICAN BOARD OF ANESTHESIOLOGY, INC., Defendant.
• Court: New York Supreme Court

Page 360

562 N.Y.S.2d 360

149 Misc.2d 11

Lee A. BALAKLAW, M.D., Plaintiff, v. The AMERICAN BOARD OF ANESTHESIOLOGY, INC., Defendant.

Supreme Court, Cortland County.

Nov. 8, 1990.

[149 Misc.2d 12] Leslie H. Cohen, Cortland, for plaintiff.

Edward A. Mervine, Bond, Schoeneck & King, Syracuse, for defendant.

IRAD S. INGRAHAM, Justice.

Plaintiff complains that Defendant's refusal to allow him to review the results of a test administered by Defendant for purposes of certification in a medical specialty constitutes breach of an implied contract between the parties and seeks inter alia to compel Defendant to disclose the test results. Defendant moves to dismiss the complaint pursuant to CPLR § 3211(a) subsections (1), (2), (5), and (7).

Both parties appeared by counsel for oral argument before this Court on September 14, 1990 in Cortland, New York.

FINDINGS OF FACT

Plaintiff is a licensed physician specializing in anesthesiology. Defendant is a non-profit corporation which establishes standards and administers a written examination for physicians who desire certification in this specialty. A passing grade on the written examination is one of several requirements for certification. Plaintiff has taken this exam on three occasions, in 1986, 1987 and 1988. Each time Defendant has informed him that he failed the exam. He has not been allowed to view the corrected answer sheets to determine the specific errors. The complaint states four causes of action: money damages for the cost of taking the exam; compensation for the Defendant's alleged wrongful deprivation of career advancement opportunities; money damages for mental anguish and embarrassment, and an order compelling Defendant to disclose the results and scoring of the examinations.

Defendant moves for dismissal of the complaint on the following grounds:

(1) failure to state a cause of action as there is no implied contract between the (2) the terms of the express contract between the parties, which contains a "hold harmless" clause, (CPLR 3211(a)(1));

parties to support a contract action, and Plaintiff has failed to plead adequately the elements of a tort action, (CPLR 3211(a)(7));

(3) the statute of limitations, as Plaintiff's sole legal remedy lies in commencing an Article 78 proceeding, for which the time has expired, (CPLR 3211(a)(5)), and;

(4) lack of subject matter jurisdiction, as the Court should not review the decisions of a private association absent a claim of economic necessity, (CPLR 3211(a)(2)).

In support of the motion, Defendant submits a copy of Plaintiff's examination applications and the accompanying information booklet which is mailed to potential applicants.

In response to the motion Plaintiff argues:

(1) that the application to take the exam created an implied contract, breached by the Board's refusal to allow him to view the exam;

(2) that this implied contract is separate from the application itself, so should not be barred by the "hold harmless" clause;

(3) that this is a contract of adhesion, and public policy demands that he be given this right to review, and;

(4) that the action is based in contract, for the reasons above, and therefore has the benefit of the longer statute of limitations.

Further, Plaintiff raises the spectre of discrimination. He alleges that the reason for his repeated failure and the Board's refusal to allow him to view the exam is that he is a graduate of a foreign medical school. In support of this allegation he submits a report by the United States General Accounting Office titled "Medical Licensing by Endorsement: Requirements Differ for Graduates of Foreign and U.S. Medical Schools." (May 1990).

CONCLUSIONS OF LAW

The parties herein are bound by the terms of their written agreement, and accordingly this motion must be determined by application of contract law. Plaintiff has adduced no evidentiary support for an action in tort. The terms of the contract bar Plaintiff's action. The application contains a provision in which Plaintiff agrees:

"to hold the American Board of Anesthesiology, Inc. ... free from any damage or complaint by reason of any action that they ... take in connection with the grades or grades given with respect to any examination, [or] the failure of said Board ... to issue me such Certification ..."

This language is clear and unambiguous. Adequate consideration for the agreement is manifest in the administration and review of the written and oral examination.

Nor is there an implied promise which would allow Plaintiff the relief sought in this instance. It is well settled that a promise may be implied "... only where we may rightfully assume that it would have been made if attention had been drawn to it * * * and that it is to be raised only to enforce a manifest equity, or to reach a result which the unequivocal acts of the parties indicate they intended to effect."

Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565 (1st Dept.), aff'd, 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748 (1985).

Plaintiff's assertion that 'manifest equity' requires allowing him to review his test is unconvincing. While review may in fact be helpful in his preparation for future attempts, it would certainly also compromise re-examination, as Defendant argues.

Defendant points to several provisions in the application information booklet which reserve authority to the Board to reject applicants, and to establish...