author: Meyer, J.

text:
    J. A. Preston Corporation et al., Appellants, v Fabrication Enterprises, Inc., et al., Respondents.
    Argued October 10, 1986;
    decided November 20, 1986

      POINTS OF COUNSEL

      Frank H. Penski, Domenick L. Gabrielli and Abigail T. Reardon for appellants.
    I. Margolies is controlling precedent and requires reversal. (Margolies v Encounter, Inc., 42 NY2d 475; Kaufman v International Business Machs. Corp., 97 AD2d 925, 61 NY2d 930; Little India Stores v Singh, 101 AD2d 727; Honeywell, Inc. v Technical Bldg. Servs., 103 AD2d 433; Mucchi v Haddad Corp., 101 AD2d 724; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021; Clark v Cuomo, 103 AD2d 244, 63 NY2d 96; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 117 Misc 2d 343; Biasca v Biasca, 108 Misc 2d 227.) II. The unanimous affirmanee of the preliminary injunction is law of the case that a preliminary injunction was warranted. (Martin v City of Cohoes, 37 NY2d 162; Cross Props. v Brook Realty Co., 76 AD2d 445; Vanguard Tours v Town of Yorktown, 102 AD2d 868; Matter of Yeampierre v Gutman, 57 AD2d 898; Foley v Roche, 86 AD2d 887.) III. Since the undertaking has been discharged, the court below should have dismissed the appeal as moot. (Honeywell, Inc. v Technical Bldg. Servs., 103 AD2d 433; Bausch & Lomb v Hydron Pac., 82 Misc 2d 576; Bisen v Post, 15 Misc 2d 59; Quandt’s Wholesale Distrs. v Giardino, 89 AD2d 669.)

      Lorance Hockert and Leonard N. Flamm for respondents.
    I. The factual setting of the Margolies decision relied on by plaintiffs does not support their motion for a discharge of the undertaking. (Margolies v Encounter, Inc., 42 NY2d 475.) II. The original affirmance, without opinion, by the court below of the grant of a preliminary injunction does not support the discharge of the preliminary injunction undertaking, nor does it constitute law of the case. (Margolies v Encounter, Inc., 42 NY2d 475; Hamilton Watch Co. v Benrus Watch Co., 206 F2d 738; University of Tex. v Camenisch, 451 US 390; Litwa v Litwa, 89 AD2d 581; City Store Gates Mfg. Corp. v United Steel Prods., 79 AD2d 671; Times Sq. Stores Corp. v Bernice Realty Co., 107 AD2d 677; Rockland County Bldrs. Assn. v McAlevey, 29 AD2d 975; Robjudi Corp. v Quality Controlled Prods., 111 AD2d 156; Montauk-Star Is. Realty Group v Deep Sea Yacht & Racquet Club, 111 AD2d 909; Chrysler Realty Corp. v Urban Investing Corp., 100 AD2d 921.) III. Reversal by this court of the decision of the court below reinstating the undertaking would eliminate the valuable protection of a bond provided for in CPLR 6312 (b). (Margolies v Encounter, Inc., 42 NY2d 475; Traver v City of Poughkeepsie, 108 AD2d 18; Benedict v Benedict, 76 NY 600; Wilson v Wilson, 130 App Div 70; Copake Lake Dev. Corp. v Zasuly, 29 AD2d 755.) IV. This appeal should not be dismissed as moot.
   OPINION OF THE COURT

Meyer, J.

Affirmance by the Appellate Division of an order granting a preliminary injunction is not a final determination of plaintiffs’ entitlement to an injunction within the meaning of CPLR 6312 (b) and does not entitle plaintiffs to an order discharging the undertaking given to obtain the preliminary injunction. The order of the Appellate Division should, therefore, be affirmed, with costs.

I

In the action underlying this appeal plaintiffs sought to recover for claimed theft of trade secrets and confidential business information, for unfair competition and as to two of the defendants for breach of fiduciary duty. On the basis of their verified complaint plaintiffs obtained an order, which was served together with the complaint on May 29, 1984, requiring defendants to show cause why a preliminary injunction should not issue. The order temporarily restrained defendants from utilizing the claimed trade secrets and business information and from competing unfairly but required no bond.

After an evidentiary hearing, Special Term, concluding that there were factual issues to be tried, granted plaintiffs a preliminary injunction conditioned upon their furnishing an undertaking in the amount of $100,000 "to secure the payment of defendants’ damages and costs as may be sustained by any party who is found to be wrongfully restrained by reason of this preliminary injunction” and set the matter for trial at the September 1984 Trial Term. The bond as issued, however, was conditioned to pay "such damages and costs * * * as [defendants] may sustain by reason of the issuance of the temporary [sic] restraining order, if the court finally decides that plaintiff [sic] was not entitled thereto.” On defendants’ appeal from the order granting the preliminary injunction the Appellate Division affirmed (106 AD2d 926).

Plaintiffs then moved for an order discharging the bond and, on stipulation of the parties, the matter was referred to a Judicial Hearing Officer (JHO) to decide all issues. By order dated April 15, 1985, the JHO discharged the undertaking but ordered that the preliminary injunction "shall otherwise remain in full force and effect”. He held in reliance on Margolies v Encounter, Inc. (42 NY2d 475) that the issue was whether plaintiffs were entitled to a preliminary injunction, not whether they had a right to a permanent injunction, and concluded that on that question the Appellate Division’s affirmance was the law of the case that the preliminary injunction had been properly issued.

On defendants’ appeal from that order the Appellate Division reversed on the law and denied the motion to discharge the bond, two Justices dissenting (117 AD2d 997), and certified to us the question whether its order was properly made. The majority, distinguishing Margolies, noted that the purpose of a preliminary injunction is to preserve the status quo even though plaintiff’s right to ultimate relief has not been proven and that if it is finally determined that plaintiff has no cause of action defendant is entitled to recover damages sustained as a result of being enjoined from doing what he had a right to do. The dissenters construed Margolies as foreclosing such a holding, and the prior affirmance of the grant of the injunction the law of the case and not subject to relitigation.

Before us plaintiffs argue that, the undertaking having been discharged, the Appellate Division should have dismissed the appeal as moot; that the Appellate Division’s prior affirmance is the law of the case; and that Margolies is controlling. We disagree and, therefore, affirm and answer the certified question in the affirmative.

II

The mootness argument is predicated on cases holding that the undertaking is the source of liability and, therefore, absent an undertaking there is no right, short of an action for malicious prosecution, to recover for damage resulting from the issuance of court process. While such holdings are undoubtedly good law (City of Yonkers v Federal Sugar Refining Co., 221 NY 206; Honeywell, Inc. v Technical Bldg. Servs., 103 AD2d 433; see, 7A Weinstein-Korn-Miller, NY Civ Prac H 6315.05), it does not follow that when an undertaking has been required and is then improperly discharged the undertaking no longer exists and the impropriety of its discharge cannot be corrected by an appellate court. Indeed, Margolies v Encounter, Inc. (42 NY2d 475, supra), on which plaintiffs rely, is authority to the contrary for, notwithstanding that Special Term had "granted plaintiffs’ motion to discharge the undertaking” (42 NY2d, at p 478), we reversed and remitted "for entry of an order directing payment of damages to Encounter to the extent of the full liability on the undertaking” (id.; cf. University of Tex. v Camenisch, 451 US 390).

The contention that defendants are barred by the law of the case because they appealed unsuccessfully the order granting the injunction to the Appellate Division and did not thereafter seek to appeal to this court stands plaintiffs in no better stead. Like arguments were made and rejected in Walker Mem. Baptist Church v Saunders (285 NY 462, 474): "The plaintiff urges upon this appeal that the law of the case was conclusively determined by the order of the Appellate Division affirming the granting of the temporary injunction since that order, it is argued, constitutes an adjudication that the complaint sets forth a good cause of action. A complete answer to this contention is that the granting of a temporary injunction serves only to hold the matter is statu quo until opportunity is afforded to decide upon the merits. The granting or refusal of a temporary injunction does not constitute the law of the case or an adjudication on the merits, and the issues must be tried to the same extent as though no temporary injunction had been applied for. In addition, since the injunction order lay in the discretion of the Special Term and the Appellate Division, the decision thereon was not appeal-able to this court (Brown v. Keeney Settlement Cheese Assn., 59 N. Y. 242; Strasser v. Moonelis, 108 N. Y. 611; Schneider v. City of Rochester, 155 N. Y. 619), and the proceeding is not material here.”

We are thus brought to the substantive issue — whether there has been a final determination of plaintiffs’ right to an injunction within the meaning of CPLR 6312 (b). That provision, so far as here pertinent, directs that "prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction”. At common law New York courts were without power, absent malice, to award damages for injury occasioned by the issuance of an injunction even though it was determined in the action that the plaintiff was not entitled to it (City of Yonkers v Federal Sugar Refining Co., 221 NY, at p 208, supra; Lawton v Green, 64 NY 326, 330). It was not until the adoption of the 31st rule of the Court of Chancery, thereafter incorporated in Code of Procedure § 222 (Field Code), that it acquired the power, limited by the amount of the undertaking, to do so (Lawton v Green, supra). The Code provision which used the words "if the court shall finally decide that the plaintiff was not entitled thereto” was carried forward in essentially the same form into the Code of Civil Procedure (Throop Code) as section 620, into the Civil Practice Act as section 893 and ultimately into CPLR 6312 (b), the words "finally decides” being changed in the present provision to "finally determined.”

Of interest on the question before us is the fact that, as enacted in 1876, the Throop Code contained a section 622 which defined what "finally decided” meant. Although the language of that section lends support to the conclusion reached by the Appellate Division majority, it is not determinative because the provision was stricken by Laws of 1877 (ch 416, § 128), thus leaving definition of the term to be worked out by the courts on a case-by-case basis. Plaintiffs argue that the Appellate Division decision affirming the preliminary injunction order is a final determination that the order was properly granted. It is, of course, true that such an order is final in the sense that no appeal from it will lie to this court except, perhaps, when the issue turns on a pure question of law, such as the sufficiency of the complaint, or upon irreparable injury (compare, Cohen and Karger, Powers of the New York Court of Appeals, at 156 [rev ed], with id., at 610). But the preliminary injunction here granted rested on Special Term’s conclusion after an evidentiary hearing that there were issues of fact and, in any event, CPLR 6312 (b) is concerned not with finality in terms of this court’s jurisdiction, but with a final determination of rights between the parties.

Thus, when defendant consents to the discontinuance of the action without reserving his rights on the undertaking, there can be no recovery on the bond because there can be no such final determination (Palmer v Foley, 71 NY 106), but when, without defendant’s consent, plaintiff discontinues the action his doing so is equivalent to a determination that he was not entitled to the injunction and permits defendant to recover on the bond (Pacific Mail S. S. Co. v Toel, 85 NY 646). So also when there is a dismissal for failure to state a cause of action, there is a final determination within the meaning of the provision in question (see, Williams v Montgomery, 148 NY 519, 524), but when dismissal occurs for a reason arising subsequent to the grant of the injunction but not going to the merits there is not (Apollinaris Co. v Venable, 136 NY 46). In the latter case, however, a determination of the merits may thereafter be obtained by either party in order to settle the respective rights on the undertaking (Williams v Montgomery, supra; Schenectady Chems. v Flacke, 113 AD2d 168, 171; Hathorn v Natural Carbonic Gas Co., 163 App Div 768).

It thus appears that the determination of the merits upon trial of the action may, indeed, establish whether a plaintiff was entitled to an injunction within the meaning of the bond. The fallacy in the present plaintiffs’ argument to the contrary lies in their emphasis upon the purpose of the preliminary injunction (to protect plaintiff’s right to vindication after trial, lest a victory be Pyrrhic) rather than upon the purpose of the undertaking they are required to post in order to obtain the injunction. As is evident from the reversal, first by Chancery rule and then by statute, of the common-law rule, that purpose was "to reimburse the defendant for damages sustained if it is later finally determined that the preliminary injunction was erroneously granted” (Margolies v Encounter, Inc., 42 NY2d, at p 477, supra; accord, Schenectady Chems. v Flacke, 113 AD2d, at p 170, supra [" '(t)o afford reasonable protection to defendants from an erroneous grant of a preliminary injunction’ ”]).

That there was no error in the grant of a preliminary injunction in terms of its initial issuance, of course, does not mean that it cannot or will not ultimately be found to have been erroneously granted and affords no reason for discharge of the undertaking while the preliminary injunction remains in force. A preliminary injunction, unless sooner abrogated, continues in force until judgment in the action is rendered (Jackson v Bunnell, 113 NY 216, 220). So long as it continues the bond cannot be canceled (Carpenter & Hughes v De Joseph, 29 Misc 2d 519, 520), for to do so leaves the defendant without the protection which the Chancery rule and later statutes were intended to provide him. It is no answer, as plaintiffs suggest, that defendants could have moved to vacate or modify the preliminary injunction (CPLR 6314) or to obtain a new undertaking against damages resulting from continuance of the injunction. As to the first, the prior decision of the Appellate Division, not appealable to this court for the reason above noted, would be the law of the case, binding upon Special Term, that the injunction granted was proper. As to the second, nothing in the CPLR or predecessor provisions suggests a legislative intent to leave a defendant unprotected while an injunction continues or to require such circuity of action in order to obtain protection against such damage as may be caused by the continuing injunction (see, Musgrave v Sherwood, 76 NY 194, 196).

It is no more of an answer to argue, as do plaintiffs, that defendants need not have appealed from the interlocutory order granting the preliminary injunction and by doing so risked the forfeiture of their right to recover on the bond in the event of an affirmance. The Appellate Division’s order affirmed Special Term’s interlocutory order and was itself interlocutory. Carried to its logical extreme, the argument would require the conclusion that once defendants’ time to appeal from the Special Term order which granted the injunction on condition that a bond be posted to protect defendants had passed without a notice of appeal being filed, plaintiffs could move to discharge the bond, the order granting the injunction being then a final determination that it had been properly granted. It is inconceivable that the rule and statutes were designed to provide a defendant with such ephemeral protection or present him or her with such a Hobson’s choice.

What plaintiffs’ arguments ignore is that liability under CPLR 6312 (b) turns on whether "it is finally determined that [plaintiff] was not entitled to an injunction” (emphasis supplied). To be entitled to a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury if provisional relief is not granted and (3) that the equities are in his favor (Grant Co. v Srogi, 52 NY2d 496, 517). Thus a preliminary injunction, even when issued after an evidentiary hearing, depends upon probabilities, any or all of which may be disproven when the action is tried on the merits, and the affirmance of an order granting a preliminary injunction determines no more than that the discretion exercised in favor of granting the order was not based upon a demonstration of those probabilities so insufficient as to constitute an abuse of discretion. In short, the Appellate Division’s prior order, though final in the sense that it could not be further appealed, determined only that plaintiffs had made a sufficient showing to warrant provisional relief but did not foreclose the possibility that it would be finally determined that plaintiffs were "not entitled to an injunction” and, therefore, did not authorize discharge of the undertaking.

Margolies is not, as appellants argue, to the contrary. The precedential value of a judicial opinion is limited to the question presented by the facts of the case before the court (Towley v King Arthur Rings, 40 NY2d 129, 132-133; Matter of Smathers, 309 NY 487, 495; Hogan v Board of Educ., 200 NY 370, 373; Crane v Bennett, 177 NY 106, 112). Margolies, like the present case, involved an earlier appeal from the grant of a preliminary injunction, as a result of which the Appellate Division held it had been improperly issued, there being no showing of irreparable injury. In the underlying action plaintiffs sought to enjoin the use of premises leased by defendant to provide services to drug-dependent persons. For reasons extraneous to the action, defendant vacated the premises before it came to trial. Plaintiffs then moved for an order discontinuing the action and discharging their undertaking. Defendant joined in the request for discontinuance but opposed the application for discharge of the bond.

The lower courts held that though defendant had suffered damage it could not recover on the bond because there had been no final determination that plaintiffs were not entitled to an injunction. We reversed, holding the prior Appellate Division decision that irreparable injury had not been shown was indeed such a final determination, and that defendant’s right to recover on the undertaking had not been defeated by its consent to discontinuance in view of the reservation of its right to recover on the bond. In so holding we noted that (42 NY2d, at p 481): "The determination of the Appellate Division in vacating the preliminary injunction in this case was based on reasoning that a preliminary injunction should never have been issued. The case would be quite different had the court concluded that while the preliminary injunction had been initially properly granted, nonetheless it should be vacated as of the later date.” Thus the holding of the Margolies case is that on the particular facts before it — the prior holding that there was no predicate for issuance of the preliminary injunction and the discontinuance of the action — it had been finally determined that plaintiffs were never entitled to the preliminary injunction in the first place. It is in this sense that the language in the Margolies opinion, on which plaintiffs rely was used. The present case is, however, "quite different”, for here (to use the language of the Margolies decision quoted above), while the prior Appellate Division decision "concluded that * * * the preliminary injunction had been initially properly granted,” the later Trial Term decision held that "nonetheless it should be vacated as of the later date.”

Our conclusion that a determination upholding the issuance of a preliminary injunction does not authorize discharge of the undertaking posted to obtain the injunction is supported by decisions of the courts of other States construing identically worded statutes (Nuclear Electronic Labs. v Cornell Co., 239 Cal App 2d 8, 48 Cal Rptr 416; Beech v United States Fid. & Guar. Co., 54 Idaho 255, 30 P2d 1079; Palace Pharmacy v Gardner & Guidone, 164 Ind App 513, 329 NE2d 642; Knappett v Locke, 92 Wn 2d 643, 600 P2d 1257; see, Luker v Perry, 351 So 2d 591 [Ala Civ App]; Dean Chevrolet v Painters, Decorators & Paperhangers, 155 So 2d 422 [Fla Ct App]; Hatch v National Sur. Corp., 105 Mont 245, 72 P2d 107; Gibson Oil Co. v Kelley, 169 Okla 218, 36 P2d 1111) as well as by commentators and text writers (Note, 73 Harv L Rev 333, 342; Ann., 92 ALR 273; 12 Carmody-Wait 2d, NY Prac, Injunctions § 78:122, at 327; 43A CJS, Injunctions, § 320, at 706; 28 NY Jur, Injunctions, § 192, at 545).

For the foregoing reasons, the order of the Appellate Division should be affirmed, _ with costs, and the certified question answered in the affirmative.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part. Order affirmed, etc.

      . We need not consider whether the arguably broader language of the order rather than the language of the bond given governs, for defendants make no such argument. The reference in the bond to a "temporary restraining order” was clearly erroneous, however, for although the order to show cause granted a temporary restraining order, it specifically provided, as authorized by CPLR 6313 (c), that no undertaking was required for that order.

      . We are informed by the briefs that after the appeal was taken, but before argument, the underlying action was tried on the merits and resulted in dismissal of the complaint. Plaintiffs have appealed that determination to the Appellate Division.

      . See also, James v Board of Educ. (42 NY2d 357, 363 [holding such orders not appealable to this court]). Plaintiffs would distinguish the Saunders holding on the ground that it concerned the merits of the case for purposes of the subsequent trial but not the merits of the grant of the preliminary injunction. For the reasons stated below we do not find the distinction persuasive.

      . Manufacturers & Traders’ Bank v Dare Co. (67 Hun 44, 48, affd on opn below sub nom. Manufacturers & Traders’ Bank v Folk, 138 NY 635) quotes that rule as providing for an undertaking conditioned to pay to the party enjoined "such damages as he may sustain by reason of the injunction, if the court shall eventually decide that the complainant was not equitably entitled to such injunction.”

      . That section read:
      "The court is deemed to have finally decided, that the plaintiff was not entitled to the injunction, within the meaning of this article, or of an undertaking given pursuant thereto, in either of the following cases:
      "1. Where the right to an injunction depends upon the nature of the action, when a final judgment is rendered in the action, which does not establish the plaintiffs right to a perpetual injunction.
      "2. In any other case, when the injunction order is vacated; or, if an application to vacate it is not made, or is denied, when final judgment against the plaintiff is rendered in the action; or, if two or more causes of action are joined in the complaint, when final judgment is so rendered upon the cause of action, with respect to which the injunction order was granted.
      "3. Where an appeal is taken from a judgment or order, specified in either of the last two subdivisions, and a stay of proceedings is obtained thereupon, when the judgment or order is finally affirmed in, or the appeal is dismissed by, the highest court, to which an appeal therefrom is taken.”
      The Commissioner’s 1872 first draft of the section (then § 606) was followed by the notation, "New; intended to clear up some doubts that exist, as to the meaning of the words 'finally decide.’ ”

      . The 1877 Throop Code contained (at 264) the Commissioner’s notation that, "Section 622 of the act of 1876, prepared to remove doubts, as to the meaning of the words 'finally decide,’ was stricken out by the amendatory act of 1877.” There is no legislative history revealing the basis for striking the section.

      . In characteristic fashion Judge Jerome Frank described a preliminary injunction in Hamilton Watch Co. v Benrus Watch Co. (206 F2d 738, 742) as "by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness.”

      . Defendants’ brief concedes that they do not seek damages for the period prior to the Appellate Division’s affirmance of the grant of the preliminary injunction. We consider, therefore, only the right to damages thereafter and do not reach or consider whether there is a right, notwithstanding the affirmance, to such damages as were earlier occasioned.

      . The importance of the discontinuance to that conclusion is pointed up by the holding in Methodist Churches v Barker (18 NY 463) that final judgment dismissing the complaint did not bar a reference thereafter to ascertain damages, notwithstanding the earlier dissolution of the injunction. Said the court (at p 465): "The injunction, it is true, was dissolved before the judgment dismissing the complaint. But the order of dissolution was not in its nature a final determination that the plaintiff in the suit was not entitled to the injunction. An order, made pending a suit, dissolving a temporary injunction, by no means determines that the party in whose favor it has been granted may not be entitled to that relief at the final decision of the cause. It may be dissolved for irregularity, or because the case is badly stated in the complaint, or upon the answer of the defendant and affidavits; and yet, at the final hearing, it may be decided that the defendant ought to be enjoined. In most cases, therefore, if not in all, a reference ordered before judgment, to ascertain the damages to be recovered upon the undertaking or security, would be premature.” (See also, New York Sec. & Trust Co. v Lipman, 83 Hun 569, 571.)

      . 42 NY2d, at p 479: "the statute refers to a final determination that the plaintiffs were not entitled to the preliminary injunction, rather than a determination with respect to their right to a permanent injunction or other favorable outcome on the merits of the main action.”

      . That decision being on appeal is not yet final in the statutory sense, but because it may hereafter be upheld plaintiffs are not now entitled to discharge of the undertaking.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Joseph Keindl, Appellant.
    Argued October 15, 1986;
    decided November 20, 1986

      POINTS OF COUNSEL

      Howard D. Stave for appellant.
    I. The indictment with numerous counts spanning a period of years was duplicitous and in violation of CPL 200:30 (1) and 200.50 (6), (7). Reversible error was committed when the motion to dismiss was denied. (People v Morris, 61 NY2d 290; People v Benjamin R., 103 AD2d 663; People v Willette, 109 AD2d 112; People v

      Morello, 115 AD2d 237, 67 NY2d 654; People v Cassiliano, 103 AD2d 806; People v MacAfee, 76 AD2d 157; People v Pries, 81 AD2d 1039; People v Faux, 99 AD2d 654; People v Iannone, 45 NY2d 589; People v Yonko, 41 AD2d 514, 34 NY2d 825.) II. Appellant’s guilt was not proven beyond a reasonable doubt as there was insufficient proof of forcible compulsion to sustain the conviction. Further, there was failure of corroboration as required by Penal Law § 130.16. And, reversible error was committed by the court below in its charge on forcible compulsion. (People v Coleman, 42 NY2d 500; People v Johnson, 37 AD2d 218, 30 NY2d 776; People v Yannucci, 283 NY 546; People v Dohring, 59 NY 374; People v Vicaretti, 54 AD2d 236; People v Beam, 83 AD2d 82, 57 NY2d 241; People v Benjamin R., 103 AD2d 663; People v Dickson, 112 AD2d 312, 65 NY2d 979; People v De Berry, 76 AD2d 933; People v Doellner, 87 AD2d 987.) III. Testimony of a psychiatrist was erroneously received as an expert witness in violation of the ultimate issue rule. (People v Cronin, 60 NY2d 430; People v Allweiss, 48 NY2d 40; De Long v County of Erie, 60 NY2d 296; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140.) IV. Acquittal of defendant on sodomy first and second degree is repugnant to his conviction on the counts charging sexual abuse in the first and second degree as against Christine Keindl. In addition, counts 21 and 22 convicting defendant of sexual abuse are lesser included offenses of sodomy and must be dismissed. (People v Stahl, 53 NY2d 1048; People v Bruckman, 46 NY2d 1020; People v Tucker, 55 NY2d 1; People v Mitchell, 64 AD2d 119; People v Clarke, 56 AD2d 851; People v Pierce, 40 AD2d 581; People v Morello, 115 AD2d 237, 67 NY2d 654; People v Kalicki, 49 AD2d 1032.)

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
    I. The indictment was not defective. (People v Barlow, 88 AD2d 668; People v Yonko, 41 AD2d 514, 34 NY2d 825; People v Cassiliano, 103 AD2d 806; People v Morris, 61 NY2d 290.) II. Defendant’s guilt was proven beyond a reasonable doubt. (People v Vicaretti, 54 AD2d 236; People v Benjamin R., 103 AD2d 663; People v Gomez, 112 AD2d 445; People v Barlow, 88 AD2d 668; People v De Vyver, 89 AD2d 745; People v Allen, 99 AD2d 592, 64 NY2d 979; People v Ahlers, 98 AD2d 821; People v Grady, 98 Misc 2d 473; People v Masse, 5 NY2d 217; People v Bravender, 35 AD2d 1035.) III. The expert evidence was properly received. (People v Cronin, 60 NY2d 430; People v Crimmins, 36 NY2d 230; People v

      Kingston, 8 NY2d 384; People v Benjamin R., 103 AD2d 663; People v Fisher, 53 NY2d 907.) IV. The issue of the propriety of the court’s charge to the jury on forcible compulsion was not preserved for appellate review. Moreover, the charge was proper. (People v Ingram, 67 NY2d 897; People v Reynolds, 25 NY2d 489.) V. The verdicts were not repugnant. Moreover, the issue of repugnancy has not been preserved for appellate review. (People v Satloff, 56 NY2d 745; People v Goodfriend, 64 NY2d 695; People v Tucker, 55 NY2d 1.) VI. Sexual abuse in the first degree is not a lesser included offense of sodomy in the first degree.
   OPINION OF THE COURT

Alexander, J.

Charged in a 32-count indictment with the crimes of sodomy, sexual abuse and endangering the welfare of a child, committed against his three stepchildren, defendant stands convicted of 26 of those 32 counts. The Appellate Division affirmed the convictions, correctly rejecting defendant’s contentions that the corroboration requirements of Penal Law § 130.16 were not met, that the evidence adduced as to forcible compulsion was insufficient under Penal Law § 130.00 (8), and that certain verdicts were repugnant, finding this latter claim not preserved and insubstantial in any event. The Appellate Division also found defendant’s arguments that the indictment was defective because of duplicity and a lack of specificity unmeritorious. We disagree and conclude that because 15 of the 26 counts of which defendant was convicted failed to comply with the requirements of CPL 200.30 (1) or were, under the circumstances, violative of the specificity requirements of CPL 200.50 (6), the order of the Appellate Division should be modified by vacating the judgment of conviction as to those counts and dismissing them, and as so modified, affirmed.

I

The indictment charged Joseph Keindl with 12 counts of sodomy in the first degree (Penal Law § 130.50), 2 counts of sodomy in the second degree (Penal Law § 130.45), 10 counts of sexual abuse in the first degree (Penal Law § 130.65), 5 counts of sexual abuse in the second degree (Penal Law § 130.60), and 3 counts of endangering the welfare of a child (Penal Law § 260.10), all arising out of accusations by his three stepchildren, Patricia, Richard and Christine, that he sexually abused them over a period of approximately three years, the pattern of abuse allegedly having begun when the children were 8, 9 and 11 years old, respectively.

According to the trial testimony of the three children, defendant generally would enter their bedroom, which they shared, in the early morning hours between 3:00 and 6:00 a.m., and approach one of the beds. He would shake that particular child awake and then force the child’s mouth onto his penis. If the child was one of the stepdaughters, he occasionally would lift her night shirt and touch her breasts or vagina. The evidence established, in addition, that some acts occurred in the living room and in the parents bedroom during the afternoon and evening hours. All of the incidents took place within the home, but outside of the mother’s view. None of the children discussed the incidents with their mother or with each other until Patricia broke the pattern of silence by revealing the events to her mother in a letter. It was that letter which led ultimately to defendant’s arrest and the instant prosecution.

All of the children testified they were afraid to resist the defendant’s demands because he threatened to hit them if they refused his advances and indeed, had hit them in the past when he was displeased with them. The children generally did not actually see defendant engage a sibling in sexual acts, although Richard testified he saw defendant touch Christine’s breasts on two occasions, and all three children testified to having heard the defendant routinely approach a sibling’s bed in the middle of the night, stand over the bed for several minutes, and then leave the room with that child in tears.

Twenty-six counts of the indictment alleged that the offenses occurred during designated periods of time, extending for as long as two years. A voluntary disclosure form served by the People provided some additional information as to the dates of the alleged offenses and also indicated that for certain counts, the alleged acts occurred several times per week during the designated time period. Defendant moved to dismiss the indictment because it charged multiple offenses in individual counts in violation of CPL 200.30 (l) and because it failed to allege with sufficient specificity the time of occurrence of the alleged offenses as required by CPL 200.50 (6). The trial court denied the motion. Recognizing, however, that the defendant was entitled to more specific dates, the trial court directed that further information be sought through a bill of particulars. In response to defendant’s subsequent demand for a bill of particulars, the People furnished an affirmation by an Assistant District Attorney which provided specific dates for some counts and narrowed the time periods for others. For many counts, however, the original time periods alleged remained unchanged. Defendant again moved to dismiss the indictment because of duplicity and lack of specificity, but the trial court again denied the motion.

At trial, the defendant testified on his own behalf. He acknowledged living with his wife and stepchildren during the designated periods and admitted having entered the children’s bedroom at night but asserted that he did so only to check on the children or to cover them up or to close the window when necessary. He denied ever having committed any of the sexual acts alleged by the children. The jury acquitted defendant of six counts of sodomy but convicted him of the remaining 26 counts. The Appellate Division affirmed the convictions (117 AD2d 679), and the case is before us by leave of a Judge of this court.

II

We begin our discussion by again reaffirming the principle that an indictment must provide the accused with fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer to the charges and to prepare an adequate defense (People v Morris, 61 NY2d 290, 293; People v Iannone, 45 NY2d 589, 594; People v Bogdanojf, 254 NY 16, 23). It is equally fundamental that an indictment must allege the crime charged with sufficient specificity to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense (People v Morris, supra, at p 293; People v Iannone, supra, at p 595; People v Williams, 243 NY 162, 165; People v Helmer, 154 NY 596, 600). Thus, the Criminal Procedure Law mandates that an indictment contain "[a] separate accusation or count addressed to each offense charged, if there be more than one” and "[a] plain and concise factual statement in each count which * * * asserts facts supporting every element of the offense charged and the defendant’s * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation” (CPL 200.50 [3], [7]; 200.30 [1]).

Although CPL 200.50 (6) commands that an indictment contain a statement in each count indicating that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time, we have said that the statute neither requires the exact date and time, nor does it restrict the length of the designated period of time which may be stated (People v Morris, 61 NY2d 290, supra). Nevertheless, the interval of time set forth in each count must reasonably "serve[ ] the function of protecting defendant’s constitutional right 'to be informed of the nature and cause of the accusation’ ” (People v Morris, supra, at p 294; People v Iannone, supra, at p 594) so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecution for the same crime. As we emphasized in Morris, "[i]n order for a defendant to make his defense 'with all reasonable knowledge and ability’ and to have 'full notice of the charge’, it is important that the indictment 'charge the time and place and nature and circumstances of the offense with clearness and certainty’ ” (People v Morris, 61 NY2d 290, 295, supra, quoting United States v Cruikshank, 92 US 542, 566).

It is equally essential to the defendant’s ability to make a defense and to plead the judgment in bar of any further prosecution that he not be called upon to answer for more than one offense in each count of an indictment. Indeed the CPL requires not only that each count specify a time when or during which the crime was committed, but also specifically demands that each count of an indictment charge only one offense (CPL 200.30 [1]; 200.50 [3]; see also, People v Klipfel, 160 NY 371, 374). Hence, where a crime is made out by the commission of one act, that act must be the only offense alleged in the count. Put differently, acts which separately and individually make out distinct crimes must be charged in separate and distinct counts (People v MacAfee, 76 AD2d 157; People v Brannon, 58 AD2d 34), and where one count alleges the commission of a particular offense occurring repeatedly during a designated period of time, that count encompasses more than one offense and is duplicitous. (People v MacAfee, supra.) The prohibition against duplicity furthers not only the functions of notice to a defendant and of assurance against double jeopardy, but also ensures the reliability of the unanimous verdict. If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of the offenses (see, People v MacAfee, 76 AD2d 157, 159-160, supra).

Ill

Here, defendant was charged with criminal sexual acts occurring over periods of time extending for as many as 10, 12 and 16 months. The voluntary disclosure form, the bill of particulars and the trial testimony make clear that defendant in fact is charged with having committed multiple criminal acts per week during the majority of the time spans specified in the various counts. For example, count 7 charges sodomy in the first degree by forcible compulsion against Patricia occurring over a period of approximately one year between August 1, 1981 and July 21, 1982, and count 8 charges sodomy in the first degree against Patricia as a person less than 11 years old, occurring between the same dates. The particulars furnished and Patricia’s testimony indicate that multiple acts of sodomy occurred approximately twice each week during the time span designated in these two counts.

Even where particular counts specify a time period considerably shorter, for example, from one to two months, they nonetheless allege that multiple acts, frequently of an unspecified number, occurred during the time period. For example, counts 5 and 6 charge sodomy in the first degree as against Patricia, occurring over a period of approximately one month, but the bill of particulars and the trial testimony make clear that three to four acts per week are alleged to have taken place during this one-month period; counts 15 and 18 each charge sexual abuse in the first degree by forcible compulsion against Christine, occurring over periods of approximately six weeks, while at least three and as many as five separate acts are alleged to have occurred during each of these six-week periods.

Conceding that more than one violation is encompassed within each of various counts, and that many counts span designated periods of time that are in some instances protracted, the People nevertheless urge that these convictions should be upheld, both under our decision in People v Morris (61 NY2d 290, supra) and on the theory that these were "continuing crimes”.

In Morris, we sustained an indictment charging sexual abuse of young children occurring over a period of some 24 days, finding the lack of a precise date as to the commission of the crime not to be a fatal defect "if it is not a substantive element of the crime” (id., at p 295). There the children were five and six years old at the time of the offenses and the indictment alleged initially that both events occurred "during the month of November 1980”. This time period was later narrowed by the People in their bill of particulars to "on or about and between Friday, November 7, 1980 and Saturday, November 30, 1980”. We observed that when time is not an essential element, the indictment is often permitted to state the time in approximate terms, but that "[t]he determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the indictment and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances” and that "significant factors in considering sufficiency are the span of time set forth and the knowledge the People have or should have of the exact date or dates of the crime.” (Id., at p 295.) We also pointed to other facts to be considered including "(1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately” (id., at p 296). Nevertheless, we made it clear that "the interval ascribed for a particular crime [may be] so excessive that, on its face, it is unreasonable and dismissal should follow.” (Id., at p 295.)

Here, as in Morris, time is not an essential element of the crimes charged. However, as indicated above, various of the counts of sodomy and sexual abuse that we are dismissing span periods of time extending for 10, 12 and 16 months, periods so excessive on their face that they are unreasonable. Moreover, unlike the children in Morris, the victims here were between 8 and 13 years old during the time of the offenses and thus more capable than the Morris children of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist them in narrowing the time spans alleged. Indeed, two counts allege exact dates on which the offenses occurred because the child was able to place the time of the alleged act by reference to the day furniture was delivered to the home.

For similar reasons, we decline to apply the "continuous crime” theory, a question we did not reach in Morris, to the crimes of sodomy and sexual abuse of which this defendant stands convicted. This theory would permit repeated acts of sexual molestation on young children within the family to be treated as "one continuous crime” because generally, the offenses are committed within the privacy of the home; the victims are children of tender years who are unable to remember specific dates, and from whom the defendant is able to demand secrecy; there are rarely any adult witnesses; and the abuse emerges as a pattern of conduct over a significant period of time (see, People v Barlow, 88 AD2d 668; cf. People v Pries, 81 AD2d 1039 [multiple rapes of same victim not a continuing offense, rather each act of intercourse is separate and distinct offense]). Citing Morosco, The Prosecution and Defense of Sex Crimes § 9.06, the People argue that charging multiple sexual offenses on a child family member as "one continuing crime” benefits both the victim and the defendant: the victim may pursue prosecution despite the inability to recall exact dates; the defendant, having been charged with one crime encompassing the complete time span, is exposed, if convicted, only to a sentence based upon one conviction rather than a sentence for several convictions, and he may still raise the bar against double jeopardy from future prosecutions for the same acts within that time span.

Although the "continuing crime” theory may be appropriately applied in the proper case, it has no applicability here as to the crimes of sodomy and sexual abuse of which this defendant has been convicted. Sodomy and sexual abuse, as those crimes are defined in the Penal Law, punish the performanee of a single act. In some instances, significant benefits may derive from the application of the "continuing crime” theory to a series of individual acts. Here, however, there is such a multiplicity of acts encompassed in single counts as to make it virtually impossible to determine the particular act of sodomy or sexual abuse as to which the jury reached a unanimous verdict. The resulting prejudice to the defendant is manifest. Moreover, there does not appear to have been any necessity for the profusion of duplicitous counts in this indictment. As discussed above, the children in this case, although of tender years, appear to have been old enough to parse the various acts within the time spans with more particularity. Indeed, the People make no claim that efforts to more accurately determine specific dates as points of reference with respect to the commission of these various acts were unsuccessful.

We reach a different result, however, as to those counts of the indictment which accuse the defendant of endangering the welfare of a child over an approximate two-year period. Endangering the welfare of a child, unlike sodomy and sexual abuse, is a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time (see, e.g., Cowley v People, 83 NY 464, 472). The statutory definition of this crime does not necessarily contemplate a single act. Hence, a defendant may be guilty of this crime by virtue of a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime (Cowley v People, supra, at p 472). Therefore, those counts charging the crime of endangering the welfare of a child based upon a pattern of sexual behavior toward the children over an approximate two-year period, were proper and do not require dismissal. Moreover, because the evidence adduced as to those counts that we dismiss would have been admissible as to the counts charging endangering the welfare of a child, it cannot be said that defendant was deprived of a fair trial on the counts that we sustain, and therefore the convictions with respect thereto should not be disturbed.

IV

Defendant also contends that the trial court erred in admitting the testimony of Dr. Gannon, a psychiatrist, presented to explain how children who have been repeatedly sexually abused by their stepfather, are likely to suffer psychologically. He argues that such expert testimony is inadmissible because it goes to the ultimate question of whether defendant is guilty of endangering the welfare of a child which is within the province of the jury to decide and is not a subject matter beyond the ken of the ordinary juror, requiring expert testimony. We disagree.

Opinion testimony of an expert witness is admissible where the conclusions to be drawn "depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence” (Dougherty v Milliken, 163 NY 527, 533; De Long v County of Erie, 60 NY2d 296; People v Cronin, 60 NY2d 430). The Trial Judge may determine, in the exercise of sound discretion, when jurors are able to draw conclusions from the evidence based on their day-to-day experience and when they would benefit from the specialized knowledge of an expert (People v Cronin, supra, at p 433). For the Trial Judge to have ruled that the range of psychological reactions of child victims who suffer from sexual abuse at the hands of their stepparents is not a subject matter within the ken of the typical juror, and therefore may be addressed by expert testimony, cannot be said to be an abuse of discretion as a matter of law (see generally, Wallace, The Syndrome Syndrome: Problems Concerning the Admissibility of Expert Testimony on Psychological Profiles, 37 U Fla L Rev 1035, 1048-1050). Furthermore, the defendant was not prevented from impeaching the People’s expert, or from presenting his own (People v Cronin, supra, at p 432; Selkowitz v County of Nassau, 45 NY2d 97, 103; see, e.g., People v Benjamin R., 103 AD2d 663, 669).

Finally, as indicated above, we agree with the Appellate Division that the corroboration requirements of Penal Law § 130.16 were met and that the evidence adduced as to forcible compulsion was sufficient under Penal Law § 130.00 (8). We have considered defendant’s remaining arguments and find them to be without merit.

Based on the foregoing, the judgment of conviction as to counts 5, 6, 7, 8, 9, 10, 15, 16, 18, 21, 22, 23, 24, 25 and 27 of the indictment should be vacated, the sentences imposed thereon set aside, and those counts dismissed with leave to the People, should they be so advised, to resubmit the charges to another Grand Jury.

Chief Judge Wachtler and Judges Meyer, Simons, Titone and Hancock, Jr., concur; Judge Kaye taking no part.

Order modified in accordance with the opinion herein and, as so modified, affirmed.

      . CPL 200.30 (1): "Each count of an indictment may charge one offense only.”

        . CPL 200.50:
      "An indictment must contain: * * *
      "6. A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time”.

      . As discussed below, we do not dismiss, as excessive under People v Morris (61 NY2d 290), the three counts of endangering the welfare of a child, despite the fact that they allege two-year time spans. We also do not decide whether the counts alleging time periods of one to two months are excessive under Morris because we find those counts to be duplicitous in violation of CPL 200.30 and dismiss them on that ground (see, infra, at pp 420-421).

      . Penal Law § 130.50 provides in pertinent part that a "person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person * * * [b]y forcible compulsion * * * 0r * * * [w]ho is less than eleven years old.” Penal Law § 130.65 provides in pertinent part that a "person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact * * * [b]y forcible compulsion * * * or * * * [w]hen the other person is less than eleven years old.”

      . Penal Law § 260.10 provides that a
      "person is guilty of endangering the welfare of a child when:
      "1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a male child less than sixteen years old or a female child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health”.


text:
    The People of the State of New York, Respondent, v Angel Gonzalez, Appellant.
    Argued October 10, 1986;
    decided November 25, 1986

      POINTS OF COUNSEL

      Irma B. Ascher and Philip L. Weinstein for appellant.
    The trial court erred and violated appellant’s due process rights in refusing to provide a "missing witness” instruction to the jury, or to allow appropriate summation comment by counsel, regarding the People’s failure to produce the complainant’s common-law husband, whose testimony would reasonably have been expected to be favorable to the People and would have been the only corroboration for the complainant’s claims that she had been mugged and that appellant had participated in the mugging. (International Union [U.A.W.] v N L. R. B., 459 F2d 1329; United States v Young, 463 F2d 934; People v Rodriguez, 38 NY2d 95; Hayden v New York Rys. Co., 233 NY 34; Graves v United States, 150 US 118; Reehil v Fraas, 129 App Div 563, 197 NY 64; People v Walker, 105 AD2d 720; People v Denson, 106 AD2d 894.)

      Elizabeth Holtzman, District Attorney (Darrell Fields, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.
    The trial court properly denied defendant’s request for a missing witness charge. (People v Buckler, 39 NY2d 895; People v Stridiron, 33 NY2d 287; People v Almodovar, 62 NY2d 126; People v Baldo, 107 AD2d 751; People v Moses, 63 NY2d 299; People v Baker, 26 NY2d 169; People v Yazum, 13 NY2d 302; People v Wright, 41 NY2d 172; People v Valerius, 31 NY2d 51.)
   OPINION OF THE COURT

Alexander, J.

Defendant was convicted, upon a jury verdict, of robbery in the first degree (Penal Law § 160.15 [3]) and petit larceny (Penal Law § 155.25). The Appellate Division affirmed the conviction (111 AD2d 870) and the case is before us by leave of the Chief Judge of this court. Defendant argues to us that the trial court erred in refusing, despite his timely request, to instruct the jury that they could draw an unfavorable inference from the failure of the People to call as a witness the complainant’s common-law husband and in precluding comment on that failure in summation to the jury. For the reasons that follow, we conclude that there should be a reversal of the conviction and a new trial ordered.

Miriam Jiminez, the complainant, testified at trial that in the early morning hours of May 17, 1981, she was accosted by two men in the lobby of her apartment building and robbed of $800. Jiminez, who was returning from her mother’s house in The Bronx, where her mother had given her the $800, stopped in a bar near her residence for a short time. Before leaving the bar, she had taken the $800 from her pocketbook and placed it in her right shoe. Upon arriving at her apartment building, she was accosted by two men. She recognized one of them as the defendant herein, someone she knew by first name, having seen him in the neighborhood on prior occasions. Jiminez testified that while his cohort brandished a gun, defendant held a knife to her neck and ordered her to hand over the money. Although Jiminez refused his demand and did not reveal where any money was secreted, defendant immediately grabbed her right shoe, removed the $800 and fled along with his accomplice. Jiminez then rushed to her second floor apartment and told her common-law husband about the incident. She testified, without objection, that her husband looked out the window and observed the defendant, who was also known to the husband, turning the corner on the run. Complainant’s husband was not called to testify during the trial.

During the charge conference following completion of the testimony, defense counsel requested a "missing witness” charge based on the People’s failure to call the complainant’s husband to testify, contending he was "a material witness and under the People’s control”. Notwithstanding that the People did not indicate any position on the matter, the court denied the requested charge.

In his summation defense counsel sought to attack the complainant’s credibility by highlighting the various witnesses who were not called to testify, although they could have corroborated various aspects of her testimony. Thus, defense counsel observed: "The husband. Whose husband? — the complaining witness(’s), husband of seven years. He certainly must have an interest in what happened here.” The People’s objection to these comments was sustained as was their objection to counsel’s further remark that the complaining witness’s testimony as to what her husband saw was "hearsay”, in that "he didn’t make it to you. He didn’t make it under oath and I couldn’t cross-examine him.” The jury was instructed to disregard this latter remark. Defendant’s conviction followed.

Under certain circumstances, the failure of a party to produce at trial a witness who presumably has evidence that would "elucidate the transactions,” requires a trial court, upon a timely request, to instruct the jury that an unfavorable inference may be drawn from the failure of the party to call such witness (People v Rodriguez, 38 NY2d 95, 98; People v Moore, 17 AD2d 57, 59, cert denied 371 US 838; see, Richardson, Evidence § 92, at 65-68 [10th ed]; McCormick, Evidence § 272, at 804-808 [3d ed]). As stated by the Supreme Court, "The rule * * * in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable” (Graves v United States, 150 US 118, 121). This instruction, commonly referred to as a "missing witness charge”, derives from the commonsense notion that "the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (2 Wigmore, Evidence § 285, at 192 [Chadbourn rev ed 1979] quoted in Laffin v Ryan, 4 AD2d 21, 25). Of course, the mere failure to produce a witness at trial, standing alone, is insufficient to justify the charge. Rather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party (see, Reehil v Fraas, 129 App Div 563, 566, revd on other grounds 197 NY 64; McCormick, op. cit.; Richardson, op. cit.; 1 CJI [NY] 8.53).

The burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances, this information may be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid "substantial possibilities of surprise” (McCormick, op. cit., at 806). Once the party seeking the charge has established prima facie that an uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party, it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not "available”, or that the witness is not under the party’s "control” such that he would not be expected to testify in his or her favor. In order to allow for effective judicial review, it is imperative that all discussions regarding this matter be clearly set forth on the record so that the respective positions of each party are readily discernible (cf. People v Ferguson, 67 NY2d 383, 389; see, United States v Blakemore, 489 F2d 193, 196; United States v Young, 463 F2d 934, 941).

It is to be emphasized that the "availability” of a witness is a separate consideration from that of "control”. "Availability” simply refers to the party’s ability to produce such witness. Surely, it would be unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so (see, 2 Wigmore, op. cit., at 199). So that, if the party opposing the charge can demonstrate, for example, that the witness’ whereabouts are unknown and that diligent efforts to locate him have been unsuccessful (People v Sharp, 107 NY 427, 465; People v Griffin, 100 AD2d 659, 660; People v Williams, 34 AD2d 1046); or that the witness is ill or incapacitated (Reehil v Fraas, 129 App Div 563, 567, supra), the charge should not be given for the inference that the witness has not been called because of his anticipated unfavorable testimony has been negated.

"Control”, however, has been described as a "relative concept” (People v Dillard, 96 AD2d 112, 115; People v Douglas, 54 AD2d 515, 516; People v Moore, 17 AD2d 57, 59, supra) and although not susceptible of precise definition, does not concern physical availability but rather the relationship between the witness and the parties. When the uncalled witness can be said to be equally available to both parties — that is, when it is within the ability of both parties to produce the witness — but the witness is a stranger to both parties and thus cannot be expected to testify favorably to one party or the other, then generally no unfavorable inference may be drawn from the failure of either party to call the witness (People v Rodriguez, 38 NY2d 95, 98, supra; Hayden v New York Rys. Co., 233 NY 34, 36-37; see, Richardson, Evidence op. cit., at 66). On the other hand, if a witness, although theoretically "available” to both sides, is favorable to or under the influence of one party and hostile to the other, the witness is said to be in the "control” of the party to whom he is favorably disposed, and an unfavorable inference may be drawn from the failure to call the witness (People v Rodriguez, supra; People v Brown, 34 NY2d 658, 660; Richardson, Evidence op. cit., at 66; McCormick, Evidence op. cit., at 806). This conclusion results from the notion that the witness’ testimony is, in a "pragmatic sense * * * unavailable to the opposing party regardless of physical availability” (United States v Blakemore, 489 F2d 193, 195, n 4, supra). Thus, the fact that a witness is "equally available” to both sides, standing alone, is insufficient to defeat a timely request for the charge. Rather, it must also be demonstrated that the witness is not in the "control” of the party who would have been expected to call him — that is, the witness, by nature of his status or otherwise, would not be expected to testify favorably to one party and adversely to the other. A missing witness charge would be appropriate however, if it is demonstrated that the party had the physical ability to locate and produce the witness, and there was such a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor.

Control is not limited in the case of a prosecution witness, as the People contend here, to law enforcement officers or persons connected to the District Attorney’s office. Certainly, law enforcement officers (People v Wright, 41 NY2d 172; People v Brown, 34 NY2d 658, supra; People v Miles, 48 AD2d 706), informants (People v Dillard, 96 AD2d 112, supra; People v Alamo, 63 AD2d 6, 7), or others connected to the prosecution are witnesses who are "or may be inferred to be, of good will” (Richardson, op. cit, at 66) to the prosecution and can be expected to testify favorably to the prosecution and adversely to the defendant. Similarly, however, the spouse or other close relative of the complainant can also be expected to so testify absent facts demonstrating a connection between said witness and the defendant such that the witness would not be expected to testify favorably to the People and adversely to the defendant (People v Wilson, 64 NY2d 634, 635; People v Rodriguez, supra; People v Moore, supra).

Here, defendant adequately met the threshold requirements to entitle him to a missing witness charge by bringing to the court’s attention the failure of the People to call a witness with knowledge about a material issue in the case and who would be expected to testify favorably to the People. The complainant’s own testimony concerning her husband’s sighting the defendant in flight immediately after the crime demonstrated that the husband was knowledgeable about a material issue: the identity of defendant as one of the assailants. Equally certain is the fact that the potential testimony of the complainant’s husband was material. The prosecution’s case rested entirely upon the complainant’s testimony and identification of the defendant. Moreover, complainant’s credibility had been impeached on cross-examination such that corroboration of her testimony was crucial (see, People v Wright, 41 NY2d 172, 176, supra). In these circumstances, it can hardly be said that the husband’s testimony would have been immaterial or irrelevant (see, People v Wright, supra; People v Brown, 34 NY2d 658, 659-660, supra; People v Rodriguez, supra). Nor can we accept the People’s argument, raised for the first time on appeal, that the testimony of the complainant’s husband would have been cumulative. Such a determination must be made by the trial court who is best suited to determine the issue in light of the facts and circumstances of each case. Suffice for our purposes to say that there is no support in the record before us to indicate that the testimony would have been cumulative.

Additionally, defendant established that the uncalled witness would be expected to testify favorably to the People and adversely to him such that he could be considered to be in the People’s control. The uncalled witness was the common-law spouse of the complainant and the father of complainant’s four-year-old son. They had resided together for seven years. These facts, without any rebuttal from the People at the time of the request to charge, sufficiently established that the uncalled witness, by virtue of his relationship with the complainant, would naturally be expected to testify in support of the People’s position and adversely to the defendant’s case. Nor is the People’s assertion that both parties had the physical ability to call the witness sufficient to defeat the charge because, as we have explained, when the witness is under the control of one party, such witness is in a pragmatic sense unavailable to the opposing party. Under these circumstances, it was error for the trial court to fail to instruct the jury that an unfavorable inference may be drawn from the People’s failure to call the complainant’s spouse. A fortiori, it was also error to prohibit defendant’s counsel from arguing this point to the jury in his summation (Seligson, Morris & Neuburger v Fairbanks Whitney Corp., 22 AD2d 625, 630). We would note also that the inference that the jury may draw is permissive and the People are equally able to argue in summation against the inference and can seek to explain the witness’ absence by reference to evidence in the record (see, People v Geoghegan, 68 AD2d 279, 287, affd on other grounds 51 NY2d 45; 2 Wigmore, op. cit., at 216).

Based on the foregoing, the order of the Appellate Division should be reversed, the judgment of conviction vacated and the matter remitted to Supreme Court, Kings County, for a new trial.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur.

Order reversed, etc.

      . We have no occasion here to address the circumstances in which a witness may be said to be in a criminal defendant’s control nor whether and the circumstances under which a nontestifying defendant may be subjected to a missing witness charge, determinations which may involve constitutional considerations.

      . The People’s reliance on People v Almodovar (62 NY2d 126) in this regard is misplaced. In the first instance, the prosecution there expressly objected to the charge on the ground that the potential testimony of the victim’s common-law wife was cumulative to other testimony and thus the trial court was able to exercise its discretion. Moreover, the uncalled witness in that case had no knowledge of any evidence, other than that found to be cumulative, that was material to any issue in the case. Thus, we held that the failure of the People to call the victim’s common-law wife did not entitle defendant to a missing witness charge because there "was nothing to indicate that [her] testimony would have contradicted or added to that of the other witnesses” (62 NY2d, at p 133, supra). To the contrary, in the instant case, the defendant established and the testimony of the complainant supported the fact that the uncalled witness was knowledgeable about a material issue.


author: Simons, J.

text:
    Ronald J. Turcotte et al., Respondents-Appellants, v Jeffrey Fell et al., Respondents, and New York Racing Association, Inc., Appellant-Respondent, et al., Defendants.
    Argued October 8, 1986;
    decided November 25, 1986

      POINTS OF COUNSEL

      Thomas F. Cumin, Marshall Cox, Eric Hellerman and Ellen Perle for appellant-respondent.
    I. By choosing to ride at Belmont Park with knowledge of the risks of thoroughbred racing that he would encounter there, Turcotte consented to subject himself to those risks and relieved NYRA of any duty to protect him from them. (Maddox v City of New York, 66 NY2d 270; Arbegast v Board of Educ., 65 NY2d 161.) II. NYRA is not an insurer of the safety of those who participate in thoroughbred racing and owes no duty to insulate a professional jockey from known risks and hazards of the sport. (Donahue v Copiague Union Free School Dist., 64 AD2d 29, 47 NY2d 440; Akins v Glens Falls City School Dist., 53 NY2d 325; Davidoff v Metropolitan Baseball Club, 61 NY2d 996; Matter of MacMillen v New York State Racing & Wagering Bd., 59 NY2d 664; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762.)

      Sheldon M. Rosen, Edward M. Cooperman and Barney T. Levantino for respondents-appellants.
    I. NYRA owed a duty to Turcotte to exercise reasonable care to maintain the track at Belmont Park in a safe condition. (Cole v New York Racing Assn., 24 AD2d 993, 17 NY2d 761; Akins v Glens Falls City School Dist., 53 NY2d 325; O’Bryan v O’Connor, 59 AD2d 219; Dillard v Little League Baseball, 55 AD2d 477; Kozera v Town of Hamburg, 40 AD2d 934; Baker v Topping, 15 AD2d 193; Zeitz v Cooperstown Baseball Centennial, 31 Misc 2d 142; Cadieux v Board of Educ., 25 AD2d 579; Ingersoll v Onondaga Hockey Club, 245 App Div 137.) II. The record fails to disclose that NYRA discharged its duty to exercise reasonable care in the maintenance of the racetrack at Belmont Park. (Maddox v City of New York, 66 NY2d 270; Arbegast v Board of Educ., 65 NY2d 161.) III. Fell breached a duty of care to Turcotte to act in a reasonable nonnegligent manner. (Jackson v Livingston Country Club, 55 AD2d 1045; Jenks v McGranaghan, 32 AD2d 989; Hornstein v State of New York, 30 AD2d 1012; Stevens v Central School Dist. No. 1, 25 AD2d 871, 21 NY2d 780; McGee v Board of Educ., 16 AD2d 99, 12 NY2d 1100; Neumann v Shlansky, 58 Misc 2d 128, 63 Misc 2d 587, 36 AD2d 540; Lamphear v State of New York, 91 AD2d 791; Jolley v Chicago Thoroughbred Enters., 275 F Supp 325.) IV. Reynolds was the employer of Jeffrey Fell during the eighth race at Belmont Park on July 13, 1978. (Matter of Abromowitz v Hudson View Constr. Co., 188 App Div 356, 228 NY 509; Muldoon v City Fireproofing Co., 134 App Div 453; Adams v Woolworth Co.,
      144 Misc 27; Sweezey v Arc Elec. Constr. Co., 295 NY 306; Matter of Renouf v New York Cent. R. R. Co., 254 NY 349; Matter of Mandatto v Hudson Shoring Co., 190 App Div 71, 229 NY 624; Matter of Litts v Risley Lbr. Co., 224 NY 321; Matter of Manning v Whalen, 259 App Div 490; Matter of Toomey v New York State Legislature, 2 NY2d 446.)

      Jeffrey Barist, George O. Richardson, III, and Robert C. Napier for respondents.
    I. The result below was mandated by Akins and is consistent with subsequent decisions of this court and the courts below. (Palsgraf v Long Is. R. R. Co., 248 NY 339; Akins v Glens Falls City School Dist., 53 NY2d 325; Davidoff v Metropolitan Baseball Club, 61 NY2d 996; Clapman v City of New York, 63 NY2d 669; Rolfe v Hollenbeck [Galt], 102 AD2d 983, 63 NY2d 604; Arbegast v Board of Educ., 65 NY2d 161; Maddox v City of New York, 66 NY2d 270; Santiago v Clark, 444 F Supp 1077; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Herman v State of New York, 109 Misc 2d 455, 94 AD2d 161.) II. Reynolds is not liable for a tort of Fell under the doctrine of respondeat superior. (Matter of Morton, 284 NY 167; Travelers Indem. Co. v McDougall, 5 AD2d 224; Peer v Babcock, 230 NY 106; Daly v Blount Lbr. Co., 213 App Div 486; Fiorentino v Wenger, 19 NY2d 407; Matter of MacMillen v New York State Racing & Wagering Bd., 59 NY2d 664; DeAntonis v Catalano, 256 App Div 10; Weiss v Laffman, 43 Misc 2d 653; Matter of Merchant v Pinkerton’s Inc., 50 NY2d 492.)
   OPINION OF THE COURT

Simons, J.

The issue raised in this appeal is the scope of the duty of care owed to a professional athlete injured during a sporting event. The defendants are a coparticipant and his employer and the owner and operator of the sports facility in which the event took place.

Plaintiff Ronald J. Turcotte is a former jockey. Before his injury he had ridden over 22,000 races in his 17-year career and achieved international fame as the jockey aboard "Secretariat” when that horse won the "Triple Crown” races in 1973. On July 13, 1978 plaintiff was injured while riding in the eighth race at Belmont Park, a racetrack owned and operated by defendant New York Racing Association (NYRA). Plaintiff had been assigned the third pole position for the race on a horse named "Flag of Leyte Gulf’. Defendant jockey Jeffrey Fell was in the second pole position riding "Small Raja”, a horse owned by defendant David P. Reynolds. On the other side of plaintiff, in the fourth position, was the horse "Walter Malone”. Seconds after the race began, Turcotte’s horse clipped the heels of "Walter Malone” and then tripped and fell, propelling plaintiff to the ground and causing him severe personal injuries which left him a paraplegic.

Plaintiffs, husband and wife, commenced this action against Jeffrey Fell, David P. Reynolds, NYRA and others no longer before the court. In their supplemental complaint, they charge that Fell is liable to them because guilty of common-law negligence and of violating the rules of the New York Racing and Wagering Board regulating "foul riding”, that Reynolds is liable for Fell’s negligence under the doctrine of respondeat superior, and that defendant NYRA is liable because it "negligently failed to water and groom that portion of the racetrack near the starting gate or watered and groomed the same in an improper and careless manner” causing it to be unsafe.

Special Term granted the motions of Fell and Reynolds for summary judgment, holding that Turcotte, by engaging in the sport of horseracing, relieved other participants of any duty of reasonable care with respect to known dangers or risks which inhere in that activity. Finding no allegations of Fell’s wanton, reckless, or intentional conduct, it dismissed the complaint as to Fell and Reynolds with leave to replead. NYRA subsequently moved for summary judgment and Special Term denied its motion because it found there were questions of fact concerning NYRA’s negligent maintenance of the track. On separate appeals, the Appellate Division affirmed, with one Justice dissenting from the order denying NYRA’s motion for summary judgment, and the matters are before us as cross appeals by its leave. The order, should be affirmed as to defendants Fell and Reynolds and reversed as to defendant NYRA, and NYRA’s motion for summary judgment should be granted. The complaint should be dismissed as to all defendants because by participating in the race, plaintiff consented that the duty of care owed him by defendants was no more than a duty to avoid reckless or intentionally harmful conduct. Although a sport’s safety rules are an important consideration in determining the scope of plaintiff’s consent, the alleged violation of the rule in this case did not constitute reckless or intentional conduct and the complaint against defendants Fell and Reynolds was properly dismissed. NYRA’s duty is similarly measured by plaintiff’s consent to accept the risk of injuries that are known, apparent or reasonably foreseeable consequences of his participation in the race. Inasmuch as there are no factual issues concerning its liability, its motion for summary judgment should have been granted also.

I

It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that it breached that duty (Akins v Glens Falls City School Dist., 53 NY2d 325, 333; Pulka v Edelman, 40 NY2d 781, 782; Kimbar v Estis, 1 NY2d 399, 405; Vogel v West Mountain Corp., 97 AD2d 46, 48). The statement that there is or is not a duty, however, "begs the essential question&emdash;whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct” (Prosser and Keeton, Torts § 53, at 357 [5th ed]; see also, De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055). Thus, while the determina- tion of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant’s action or inaction, they also necessitate an examination of plaintiff’s reasonable expectations of the care owed him by others. This is particularly true in professional sporting contests, which by their nature involve an elevated degree of danger. If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks. Traditionally, the

participant’s conduct was conveniently analyzed in terms of the defensive doctrine of assumption of assumption of risk. With the enactment of the comparative negligence statute, however, assumption of risk is no longer an absolute defense (see, CPLR 1411, eff Sept. 1,1975). Thus, it has become necessary, and quite proper, when measuring a defendant’s duty to a plaintiff to consider the risks assumed by the plaintiff (see, Davidoff v Metropolitan Baseball Club, 61 NY2d 996, 997; Clapman v City of New York, 63 NY2d 669; Akins v Glens Falls City School Dist., 53 NY2d 325, 329, supra [duty owed by proprietors of sporting facilities to spectators]). The shift in analysis is proper because the "doctrine [of assumption of risk] deserves no separate existence (except for express assumption of risk) and is simply a confusing way of stating certain no-duty rules” (James, Assumption of Risk: Unhappy Reincarnation, 78 Yale LJ 185, 187-188). Accordingly, the analysis of care owed to plaintiff in the professional sporting event by a coparticipant and by the proprietor of the facility in which it takes place must be evaluated by considering the risks plaintiff assumed when he elected to participate in the event and how those assumed risks qualified defendants’ duty to him.

The risk assumed has been defined a number of ways but in its most basic sense it "means that the plaintiff, in advance, has given his * * * consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The situation is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury * * * The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (Prosser and Keeton, Torts § 68, at 480-481 [5th ed]; 4 Harper, James & Gray, Torts § 21.0 et seq. [2d ed]; Restatement [Second] of Torts § 496A comments b, c; see also, Bohlen, Voluntary Assumption of Risk, 20 Harv L Rev 14 [assumption of risk is another way of finding no duty of care]; Comment, Assumption of Risk and Vicarious Liability in Personal Injury Actions Brought by Professional Athletes, 1980 Duke LJ 742).

The doctrine has been divided into several categories but as the term applies to sporting events it involves what commentators call "primary” assumption of risk. Risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty (Prosser and Keeton, Torts § 68 [5th ed]; 4 Harper, James & Gray, Torts §21.1 [2d ed]). Plaintiff’s "consent” is not constructive consent; it is actual consent implied from the act of the electing to participate in the activity (see, Restatement [Second] of Torts § 892 [2]). When thus analyzed and applied, assumption of risk is not an absolute defense but a measure of the defendant’s duty of care and thus survives the enactment of the comparative fault statute (see, Prosser and Keeton, Torts § 68, at 481, n 10, 496-497 [5th ed]; 4 Harper, James & Gray, Torts § 21.0, at 188-189; § 21.3, at 223-224; § 21.5, at 238-239, n 17 [2d ed]; Restatement [Second] of Torts § 50 comment b; Assumption of Risk, op. cit., 1980 Duke LJ 742).

II

We turn then to an analysis of these two requirements — the nature and scope of plaintiff’s consent. It would be a rare thing, indeed, if the election of a professional athlete to participate in a sport at which he makes his living could be said to be involuntary. Plaintiff’s participation certainly was not involuntary in this case and thus we are concerned only with the scope of his consent.

As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation (see, Maddox v City of New York, 66 NY2d 270, 277-278). But while the courts have traditionally exercised great restraint in the belief that "the law should not place unreasonable burdens on the free and vigorous participation in sports”, they have recognized that organized, athletic competition does not exist in a vacuum. Some "of the restraints of civilization must accompany every athlete onto the playing field” (Nabozny v Barnhill, 31 Ill App 3d 212, 214-215, 334 NE2d 258, 260). Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional (see, McGee v Board of Educ., 16 AD2d 99, lv denied 13 NY2d 596; see also, Nabozny v Barnhill, 31 Ill App 3d 212, 334 NE2d 258, supra; Hackbart v Cincinnati Bengals, 601 F2d 516, cert denied 444 US 931; Restatement [Second] of Torts § 500; see generally, Note, Tort Liability in Professional Sports, 44 Alb L Rev 696, 697-699 [1980]; Comment, Torts: Athlete States Cause of Action for Injury During a Professional Football Game, 19 Washburn LJ 646, 648 [1980]; Beumler, Liability in Professional Sports: An Alternative to Violence?, 22 Ariz L Rev 919, 922 [1980]; Liability of Participant in Team Athletic Competition for Injury to or Death of Another Participant, Ann., 77 ALR3d 1300).

Whether a professional athlete should be held under this standard to have consented to the act or omission of a coparticipant which caused his injury involves consideration of a variety of factors including but not limited to: the ultimate purpose of the game and the method or methods of winning it; the relationship of defendant’s conduct to the game’s ultimate purpose, especially his conduct with respect to rules and customs whose purpose is to enhance the safety of the participants; and the equipment or animals involved in the playing of the game. The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally. Manifestly a professional athlete is more aware of the dangers of the activity, and presumably more willing to accept them in exchange for a salary, than is an amateur.

In this case plaintiff testified before trial to facts establishing that horse racing is a dangerous activity. A thoroughbred race horse is the result of years of breeding and that breeding, and all the horse’s training, are directed to building speed. A thoroughbred horse weighs about one-half ton and, during the course of the race, will reach speeds of 40 miles per hour or more. Jockeys weighing between 100 and 120 pounds, attempt to control these animals, all the while trying to prevail in a race whose very rules require them to exert a maximum effort to win. Plaintiff testified that every professional jockey had experiences when he was not able to keep a horse running on a straight line, or a horse would veer, or jump up on its hind legs, or go faster or slower than the jockey indicated. He further acknowledged that horses in a race do not run in prescribed lanes and it is lawful, under the rules of racing, for horses to move out of their starting lane to other parts of the track provided that the horse does not interfere with other horses when doing so. Indeed, during the course of a race, speeding horses lawfully and properly come within inches of other horses and frequently bump each other. Turcotte conceded that there is a fine line between what is lawful and unlawful in the movement of a horse on the track during a race and that when and where a horse can lawfully change its position is a matter of judgment. Such dangers are inherent in the sport. Because they are recognized as such by plaintiff, the courts below properly held that he consented to relieve defendant Jeffrey Fell of the legal duty to use reasonable care to avoid crossing into his lane of travel.

Plaintiffs nonetheless contend that Fell’s alleged violation of 9 NYCRR 4035.2, which prohibits foul riding, is sufficient to sustain their complaint. They assert that the rule is a safety rule and that a participant does not accept or consent to the violation of the rules of a game even though the violation is foreseeable. They rely principally on Hackbart v Cincinnati Bengals (601 F2d 516, supra) in which the plaintiff was injured when intentionally struck in the neck from behind by an opposing football player after the play was over and Nabozny v Barnhill (31 Ill App 3d 212, 334 NE2d 258, supra) in which the plaintiff, playing goal tender in a high school soccer match, was injured after picking up the ball in a free kick zone when kicked in the head by player on an opposing team (see also, Restatement [Second] of Torts § 50 comment b).

The rules of the sport, however, do not necessarily limit the scope of the professional’s consent. Although the foul riding rule is a safety measure, it is not by its terms absolute for it establishes a spectrum of conduct and penalties, depending on whether the violation is careless or willful and whether the contact was the result of mutual fault. As the rule recognizes, bumping and jostling are normal incidents of the sport. They are not, as were the blows in Nabozny and Hackbart, flagrant infractions unrelated to the normal method of playing the game and done without any competitive purpose. Plaintiff does not claim that Fell intentionally or recklessly bumped him, he claims only that as a result of carelessness, Fell failed to control his mount as the horses raced for the lead and a preferred position on the track. While a participant’s "consent” to join in a sporting activity is not a waiver of all rules infractions, nonetheless a professional clearly understands the usual incidents of competition resulting from carelessness, particularly those which result from the customarily accepted method of playing the sport, and accepts them. They are within the known, apparent and foreseeable dangers of the sport and not actionable and thus plaintiffs’ complaint against defendant Fell was properly dismissed.

Ill

Defendant Reynolds, owner of "Small Raja”, was sued under the doctrine of respondeat superior but the dismissal of the complaint against Fell, his employee, mandates dismissal of the complaint against the employer (see, Brown v Poritzky, 30 NY2d 289, 292; see generally, Note, Tort Liability in Professional Sports, 44 Alb L Rev 696, 706-717).

IV

The complaint against NYRA should also be dismissed. As the owner of the racetrack, it owed the same general duty to those using its property as to owners of real property generally, the duty to exercise "reasonable care under the circumstances” (Akins v Glens Falls City School Dist., 53 NY2d 325, 329, supra; Basso v Miller, 40 NY2d 233, 241; Scurti v City of New York, 40 NY2d 433, 437). Reasonable care may vary, however, depending upon the party seeking relief and his purpose in being on the premises (Basso v Miller, supra, p 241; see, Scaduto v State of New York, 86 AD2d 682, affd 56 NY2d 762; Liability for Injury or Death of Participant in Automobile or Horse Race at Public Track, Ann., 13 ALR4th 623; cf. Maddox v City of New York, 66 NY2d 270, supra). Thus, we noted in Akins that the duty of the owner of a baseball field to a spectator must be determined by considering plaintiffs status as a person who accepted certain risks of watching the game, and we held that the owner was required to provide only enough screening to protect a sufficient number of seats for those spectators who, under ordinary circumstances, desired to sit behind a screen (see also, Clapman v City of New York, 63 NY2d 669, supra; Davidoff v Metropolitan Baseball Club, 61 NY2d 996, supra).

NYRA’s duty to plaintiff is similarly measured by his position and purpose for being on the track on July 13 and the risks he accepted by being there. In deciding whether plaintiff consented to the conditions which existed at the time, the court should consider the nature of professional horseracing and the facilities used for it, the playing conditions under which horseracing is carried out, the frequency of the track’s use and the correlative ability of the owner to repair or refurbish the track, and the standards maintained by other similarly used facilities.

Plaintiffs charge that NYRA was negligent in failing to water the "chute”, which leads to the main track, and "over-watering” the main track. Thus, they claim the horses had to run from the dry surface of the chute onto the overly watered, unsafe "cuppy” surface of the main track. Plaintiff testified, however, that "cupping” conditions are common on racetracks and that he had experienced them before at Belmont Park and also at many other tracks. Indeed, he testified that he had never ridden on a track where he had not observed a cupping condition at one time or another. Thus, Turcotte’s participation in three prior races at this same track on the day of his injury, his ability to observe the condition of the track before the eighth race and his general knowledge and experience with cupping conditions and their prevalence establish that he was well aware of these conditions and the possible dangers from them and that he accepted the risk.

Plaintiffs rely on Cole v New York Racing Assn. (24 AD2d 993, affd, no opn 17 NY2d 761) in which the estate of a well-known jockey who was killed at the Aqueduct Race Track, brought a wrongful death action against the owner and operator of the track. During an "exhibition” workout between races, the jockey was thrown from his horse after it had collided with an infield track rail supported by metal posts. These metal posts were embedded in cylindrical concrete footings, and upon his fall the jockey struck his head and back on one of the footings and sustained an injury which ultimately resulted in his death. At trial, plaintiff successfully maintained that the owner’s negligent erection and maintenance of the concrete footings caused the death. Affirming the jury verdict for plaintiff, the Appellate Division noted the trial evidence that the elevated condition used for the footings was higher than the level of construction commonly used at other racetracks, that it was not necessary and that it had been used by defendant as an economy measure. The court held that based on this evidence the jury could properly find this deviation constituted negligence and that the defendant owner’s "claim that decedent’s assumption of the risks inherent in racing embraced the danger occasioned by the elevated condition of the footings was not supported by any evidence tending to show that the danger was 'ordinary and necessary’ to the sport and thus inherent in the activity itself’ (Cole v New York Racing Assn., supra, p 994). The decision, which predated the enactment of CPLR article 14-A and analyzed the issue concerning inherent dangers of the sport of horseracing in terms of the defense of assumption of risk, is entirely consistent with the resolution of this case. The decedent in Cole could not have consented to the danger created by the footings because the danger of them did not "inhere” in the sport. Thus, the track proprietor was not entitled to the absolute defense of assumption of risk and its conduct in maintaining the premises was measured by a general negligence standard.

The parties have argued various interpretations of two of our recent decisions and their application to the facts of this case. Both are inapposite. Although the circumstances in the present case are similar to those in Maddox v City of New York (66 NY2d 270, supra), Maddox was decided under the law as it existed before enactment of the comparative negligence statute. The case involved a professional baseball player voluntarily playing on a field he knew was wet and soft. His claim for damages for injuries resulting when he stepped on a soft spot in the outfield was denied because the city was allowed to assert assumption of risk as a complete defense. Had that cause of action arisen under the present law, it could appropriately have been decided on the basis of duty under the same rules formulated here and with the same result.

Plaintiffs also contend that our decision in Arbegast v Board of Educ. (65 NY2d 161) mandates reversal of the order dismissing their complaint against defendants Fell and Reynolds. Arbegast dealt with a claim by a student teacher injured in a donkey basketball game, an activity of informal rules and uncertain risks, which had been scheduled as a fund-raising event for a senior high school class. Recovery was sought against the owner of the donkeys on the basis of common-law negligence and the absolute liability of the owner of an animal of vicious propensities. The court in that case denied plaintiff’s request to charge the principles of comparative negligence and the jury returned a verdict of no cause of action. Plaintiff appealed, claiming that denial of her requested instruction constituted reversible error, and the Appellate Division affirmed. In sustaining its order, we held that plaintiff’s testimony established an express assumption of the risks of the activity relieving defendant of liability and therefore that defendant’s motion to dismiss the complaint at the conclusion of her case should have been granted. That holding is neither inconsistent with, nor applicable to, our decision in this case.

Accordingly, on appeal by plaintiffs, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. On appeal by defendant NYRA, the order should be reversed, with costs, defendant’s motion for summary judgment granted and the certified question answered in the negative.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur.

On the appeal by plaintiffs, order affirmed, etc.

On the appeal by defendant NYRA, order reversed, etc.

      . 9 NYCRR 4035.2 reads, in relevant part:
      "Foul riding penalized, (a) When clear, a horse may be taken to any part of the course provided that crossing or weaving in front of contenders may constitute interference or intimidation for which the offender may be disciplined.
      "(b) A horse crossing another so as actually to impede him is disqualified, unless the impeded horse was partly in fault or the crossing was wholly caused by the fault of some other horse or jockey.
      "(c) If a horse or jockey jostles another horse, the aggressor may be disqualified, unless the impeding horse or his jockey was partly in fault or the jostle was wholly caused by the fault of some other horse or jockey.
      "(d) If a jockey willfully strikes another horse or jockey or rides willfully or carelessly so as to injure another horse, which is in no way in fault, or so as to cause other horses to do so, his horse is disqualified.”

      . "Cuppiness” is the tendency of wet track surface to stick to the underside of a horse’s hoof within the shoe.