We concur with the majority in the dismissal of the causes of action for strict products liability and breach of warranty. We respectfully dissent from the majority’s denial of third-party *13defendant General Electric Company’s motion for summary judgment as to the alleged cause of action in negligence.
Assuming, arguendo, that General Electric had the legal duty to provide safety devices for the protection of users of the high speed machine, it is incumbent upon defendant K.M. Equipment Corporation (K.M.) to prove that the machine was without those devices when sold by General Electric. To defeat a motion for summary judgment, the opponent must present evidentiary facts sufficient to raise a triable issue of fact (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290; 4 Weinstein-Korn-Miller, NY Civ Prac u 3212.12). The opponent must make his showing by producing evidentiary proof in admissible form or by demonstrating an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557, 562). "[Mjere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (supra, p 562). Where the parties have produced their proof, and the inferences of fact on which the opponent to the motion relies are based upon mere speculation, that opponent may not prevail (see, Behar v Ordover, 92 AD2d 557, 558, appeal dismissed 59 NY2d 762; cf. Johnson v Tschiember, 7 AD2d 1029, 1030).
General Electric last had possession of the machine on June 27, 1973. Following that date, the machine was owned and possessed successively by Semco Equipment Company, third-party defendant Commercial Equipment and Machinery Company, fourth-party defendant East Bay Industries, Inc., and K.M., which sold the machine to plaintiffs corporation, Ardex Corporation, on April 28, 1976. During this entire period of time, no one attempted to use the machine for its originally intended purpose nor to sell it to another for that use. It was only after K.M. rebuilt the machine that it was offered for sale for its originally intended use. Even then, fifth-party defendant Charles W. Ashline Plumbing & Heating, Inc., was hired by Ardex to install the machine and put it into use.
It is true that no employee of General Electric recalls the condition of the machine when it was sold by it and, consequently, General Electric has no witness to disprove K.M.’s allegation that it was sold without necessary safety devices. Nevertheless, the burden of proving that the machine was in a defective condition remains with K.M., who did not come forward with any legally admissible evidence that the machine lacked safety devices when sold by General Electric. It would be pure speculation to conclude that the machine *14delivered to Ardex was in the same condition as it was when sold by General Electric. Faced with the necessity of proving that the machine was defective, K.M. has failed to submit any proof which would tend to establish the lack of proper safeguards. Because of K.M.’s failure to offer evidence sufficient to create an issue of fact, the negligence cause of action should have been dismissed.
Beyond that aspect of the motion, in our view it is inconceivable that General Electric can be held liable to K.M. on a negligence theory, which requires proof of a breach of duty. Under the circumstances, it seems logical to us that if no duty exists in strict products liability, none could exist in negligence. But if such a possibility does exist, the facts of the case fall far short of establishing the necessary legal duty of General Electric toward K.M. and plaintiff. The property was advertised for sale under the caveat "As Is—Where Is”. The selling price was $35. These two facts, by themselves, rebut any contention that the property was being sold as an operable machine completely suited to the purposes of Ardex. There is no indication in the record that anyone in the chain of title ever considered selling the machine as an operable piece of machinery without first rebuilding it. Before the sale to Ardex, K.M. did rebuild the machine. An admission of this fact is contained in paragraph 10 of K.M.’s answer to the original complaint, which stated that its activity consisted "of rebuilding said used machine”.
Recently, this court stated that "[t]he symmetry is clear: absent a duty, there is no breach and, without a breach, there is no liability. Whether a duty exists presents a question of law to be determined by the court based upon the facts and circumstances of the case” (Vogel v West Mountain Corp., 97 AD2d 46, 48; see, Akins v Glens Falls City School Dist., 53 NY2d 325, 332-333; Palsgraf v Long Is. R. R. Co., 248 NY 339, 342). A determination of a duty must be based on reason and sound policy (De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 33, affd 47 NY2d 440). There is no duty when a product is not used in a manner for which it was intended or another reasonably foreseeable manner (Micallef v Miehle Co., 39 NY2d 376, 385-386; Restatement [Second] of Torts §388 comment e [1965]). The transaction involved here is nothing more than a salvage operation. Ardex, as purchaser, knew by the terms of the sale that General Electric made no representation as to the machine’s serviceability. The selling price was *15no more than the price its weight would bring as scrap metal. There is no proof from which it might be inferred that the sale was made in contemplation of the machine’s being put into use in its existing condition. To cast liability on General Electric in these circumstances would, in essence, make it an insurer for all subsequent injuries no matter how remote or unrelated it was to the sale of this machine for salvage.
Furthermore, General Electric’s status in this transaction could, at best, be categorized as that of a casual seller. It certainly was not a manufacturer or distributor of this machine. A casual seller has a duty to warn users only of latent defects (Copp v Corning Glass Works, 114 AD2d 144,146). There has been no proof of a latent or unobservable defect which conceivably should have been disclosed. Exposing General Electric to liability under these circumstances does not foster sound policy (see, Micallef v Miehle Co., supra; Prosser and Keeton, Torts § 98, at 692-693 [5th ed]).
Accordingly, we would modify Special Term’s order and dismiss the complaint in its entirety.
Weiss and Yesawich, Jr., JJ., concur with Casey, J.; Kane, J. P., and Harvey, J., concur in part and dissent in part in an opinion by Harvey, J.
Order affirmed, without costs.