Opinion
December 6, 1976
Proceeding pursuant to section 298 Exec. of the Executive Law to review, on the ground of inadequacy of damages, an order of the State Human Rights Appeal Board, dated June 30, 1975, which affirmed an order of the State Division of Human Rights, dated June 13, 1974 and made after a hearing held pursuant to an order of this court (State Div. of Human Rights v New Star Homes Dev. Corp., 39 A.D.2d 598), which awarded petitioner, Alvin F. Frost, Jr., the sum of $520 in compensatory damages. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. The decision in Kaval Constr. Corp. v State Div. of Human Rights ( 39 A.D.2d 347) is dispositive that compensatory damages for a breach of contract based upon race discrimination are limited to the common-law damages for breach of contract. The petitioner has failed to sufficiently prove any discrepancy between the contract price and the market value at the time of the breach, or even at a period five months later. Furthermore, he has failed to show why damages should be measured at a point five months after the discriminatory act. There must be some affirmative showing to substantially vary the rule that damages are measured as of the time of the breach. Latham, Acting P.J., Damiani, Hawkins and O'Connor, JJ., concur.