The issue before the Court is whether defendant Howard Industries, Inc. is entitled to summary judgment when the object of the products liability action was unavailable for inspection or testing. Because I think that this question should be answered in the negative, I respectfully dissent.
The majority relies on defendant’s evidence, proffered by expert affidavit, that states that “its transformers were designed and manufactured under state of the art conditions” according to specifications and that “its manufacturing process complied with applicable industry standards” (majority op at 223). The majority also relies on statements “that each transformer was individually tested before leaving defendant’s plant” and that it would be “virtually impossible for a transformer with an internal fault to leave [defendant’s] plant” (id. at 224). In my view, this showing is insufficient to entitle defendant to judgment as a matter of law.
The available inference from defendant’s bare assertions— that this transformer could not have left its plant with a defect—is purely speculative. Defendant’s own expert conceded as much: “without the transformer to test and examine, there is simply no evidence or proof that [defendant] sold a transformer containing a defect.”
Yet, defendant’s experts proceeded to speculate as to possible causes of the explosion, of course, excluding a manufacturing defect. For example, they posited numerous theories: that a negligent worker could have “inadvertently cause[d] an internal short (fault) by permitting the wires to become kinked”; that a negligent worker could have dropped “an object such as a nut, metal tool or other conductive material” into the transformer; that the transformer may have been rebuilt by Niagara Mohawk; or that a negligent worker could have allowed rainwater to enter the transformer while it was being rewired.
Although the majority correctly states the law in its discussion of Speller v Sears, Roebuck & Co. (100 NY2d 38 [2003]), that case is distinguishable. After the defendant in Speller presented its theory of the cause of the house fire (i.e., grease fire began on top of kitchen stove), plaintiff, who had access to the refrigerator, kitchen and the stove, was able to come forward with competent evidence to exclude the stove as the origin of the fire (see id. at 42-43). With a finite number of potential causes of the fire, it was proper, in that case, to permit possible alternative causes to satisfy movant’s initial burden and, indeed, *226nonmovant’s burden. In other words, each party in Speller benefitted by the factual scenario such that, on their respective burdens, each could proffer equally plausible, narrowing theories of causation adequate on a motion for summary judgment.
Here, on the other hand, defendant speculated as to possible causes of the transformer explosion which, according to its own experts, could not be established, while plaintiff was expected to exclude these very causes. The unique facts surrounding the unavailability of the transformer are equally disadvantageous, and neither party could definitively establish entitlement to judgment as a matter of law. Accordingly, the burden shifting exercise in this case is impractical, thus rendering these facts fundamentally unlike Speller (cf. Speller, 100 NY2d at 43). In sum, by giving credence to defendant’s bare, obviously self-serving assertions that permit a weak inference of no defect, the result here unjustifiably disadvantages the nonmovant.
Accordingly, I would hold, as did the Appellate Division, that defendant failed to meet its burden, thus obviating the need to consider the adequacy of plaintiffs submissions in opposition.
Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Smith concur with Judge Pigott; Judge Jones dissents in a separate opinion.
Order reversed, etc.