In re the Arbitration between Robert Chuckrow Construction Co. & Horowitz Bros.

Order entered March 4, 1968, herein appealed from, unanimously modified, on the law, without costs or disbursements, to stay the arbitration as to the claim for extra work, and the proceeding remanded for a hearing to determine if and to what extent there was compliance with the condition precedent of the contracts for such extra work. It is not now determined whether the exculpatory clause absolutely bars recovery of damages for delay. Resolution of that issue, to be determined by the arbitrator, depends upon the facts developed. The correct rule is laid down in Norman Co. v. County of Nassau (27 A D 2d 936) and attention is directed thereto. “ The clause will not be deemed exculpatory to a defendant owner where a trial demonstrates that he has actively or willfully interfered with plaintiff contractor’s performance [citations omitted]. The defendant owner may have the benefit of the exculpatory clause where, after trial, the proof shows no unwarranted interference on his part with the performance of the plaintiff contractor” (supra, p. 937). Arbitration should be limited to delay, if any, so caused. Concur—Stevens, J. P., Eager, Steuer, Tilzer and McGivern, JJ.