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Dalton v. Educ. Testing Serv.

Court of Appeals of New York

October 19, 1995, Argued ; December 7, 1995, Decided

No. 263


 [*386]  [**290]  [***978]    Chief Judge Kaye.

[1, 2] 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 [****5]  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 [*387]  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.

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 [****6]  ETS Test Security Office therefore reviewed his May and November answer sheets. Upon a finding of disparate handwriting, the answer sheets were submitted to a document examiner, who opined that they were completed by separate individuals. Dalton's case was then forwarded to the Board of Review, which preliminarily decided that substantial evidence supported cancelling Dalton's November score.

Upon registering for the November SAT, Dalton had signed a statement agreeing to the conditions in the New York State edition of the Registration Bulletin, which reserved to ETS "the right to cancel any test score … if ETS believes that there is reason to question the score's validity." The Registration Bulletin further provided that, if "the validity of a test score is questioned because it may have been obtained unfairly, ETS [will] notif[y] the test taker of the reasons for questioning the score" and offer the test-taker the following five options: (1) the opportunity to provide additional information, (2) confirmation of the score by taking a free retest, (3) authorization for ETS to cancel the score and refund all fees, (4) third-party review by any institution receiving the test [****7]  score or (5) arbitration.

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87 N.Y.2d 384 *; 663 N.E.2d 289 **; 639 N.Y.S.2d 977 ***; 1995 N.Y. LEXIS 4450 ****

Peter Dalton, as Parent and Natural Guardian of Brian M. Dalton, an Infant, Respondent, v. Educational Testing Service, Appellant.

Prior History:  [****1]  Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered July 11, 1994, which affirmed so much of a judgment of the Supreme Court (William D. Friedmann, J.; opn 155 Misc 2d 214), entered in Queens County after a nonjury trial, as directed defendant to release, without comment or qualification, Brian M. Dalton's test scores on the November 2, 1991, Scholastic Aptitude Test.

Dalton v Educational Testing Serv., 206 AD2d 402, 614 N.Y.S.2d 742, modified.

Disposition:  Order modified in accordance with the opinion herein and, as so modified, affirmed, without costs.


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Business & Corporate Compliance, Contracts Law, Types of Contracts, Covenants, Contracts Law, Contract Interpretation, Good Faith & Fair Dealing, Administrative Law, Judicial Review, Reviewability, Factual Determinations, Civil Procedure, Trials, Bench Trials, Standards of Review, Substantial Evidence, General Overview, Remedies, Specific Performance