(dissenting). I respectfully dissent. Plaintiffs met their burden of establishing that defendants were able to design a safer cigarette that maintained the functionality of a regular cigarette (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109 [1983]). The majority concludes, however, that plaintiffs were required “to prove that smokers find light cigarettes as satisfying as regular cigarettes,” and were further obligated to prove that cigarettes serve some function other than to provide plea*552sure (majority op at 550). In my view, this language improperly shifts the burden of proving consumer acceptability to plaintiffs.
At trial, defendants moved “to offer evidence tending to prove that the ‘safer alternative design’ suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)” (10 Misc 3d 680, 696-697 [2005]). The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality (id. at 699). That was error and, therefore, I would remit the matter to Supreme Court for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette.
Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Jones concur with Judge Smith; Judge Pigott dissents in a separate opinion.
Order affirmed, with costs.