Casey, J. P. (dissenting). The majority holds that a used car dealer who employs an accepted method of repair to correct a coolant leak detected during the warranty period is liable under the used car "Lemon Law” (General Business Law § 198-b) when a coolant leak appears some three months later, after expiration of the warranty period and after the vehicle had been driven on a regular basis without any problem, despite the absence of any evidence that the repair was not properly done or that the repair failed. Since the effect of this holding is to relieve plaintiff of the burden of proving that defendant failed to correct the defect, thereby extending the coverage of the Lemon Law far beyond its intended scope, I dissent.
The critical issue in this case is whether defendant failed to correct the defect that caused the original coolant leak (see, General Business Law § 198-b [c] [1]). Plaintiff presented no direct evidence on this issue. In contrast, defendant presented the expert who supervised the repair of plaintiff’s vehicle. He testified that the repair method used on plaintiff’s vehicle was an accepted technique to repair a crack in an engine block and that the repair was properly done. After the repair was performed, the original coolant leak stopped and the vehicle was operated on a regular basis. To carry his burden of proof on the issue, plaintiff relied exclusively on the appearance of a coolant leak some three months after the repair was done as circumstantial evidence that defendant’s repair failed to correct the defect. "In order to prove a fact by circumstances, there must be positive proof of some fact which does not itself directly establish the fact in dispute, but which affords a reasonable inference of its existence. The fact upon which it is sought to base an inference must be shown and not left to rest in conjecture. If and when the fact is shown, it must then appear that the inference drawn is the only one that is fair and reasonable (see Markel v Spencer, 5 AD2d 400, affd 5 NY2d 958).” (Matter of Ridings v Vaccarello, 55 AD2d 650, 651.)
*307There is positive proof that the engine in defendant’s vehicle began to leak coolant three months after defendant repaired the defect that was the cause of the original coolant leak. There is, however, no evidence that the cause of the subsequent leak was related in any way to the cause of the original leak, which was corrected by defendant’s repair. In fact, plaintiff made no effort to prove the cause of the subsequent leak, and the majority holds that plaintiff had no obligation to do so, despite the undisputed expert evidence submitted by defendant that the cause of the original leak was properly repaired using an accepted technique. Nor did plaintiff make any effort to prove that the subsequent leak was in the same location as the original leak. A review of the record reveals that the location of neither leak can be determined with any degree of accuracy or certainty. Nor did plaintiff make any effort to establish that the subsequent coolant leak could have no cause other than the defect that caused the original leak. On the contrary, plaintiff’s evidence reveals that coolant leaks can be difficult to diagnose and can have causes other than a crack in the engine block. For example, when plaintiff first discovered the original coolant leak within the warranty period he apparently took the vehicle to another mechanic before returning it to defendant. This mechanic diagnosed the problem as "[r]ight head gasket leaking [and] intake manifold leaking”, a diagnosis that defendant discovered was incorrect when it unsuccessfully sought to correct the original leak by installing an intake manifold gasket.
The only remotely relevant evidence was elicited by defendant when, on cross-examination, plaintiff was asked whether the subsequent leak was where the repair was made and he responded, "To the best of my knowledge, yes.” To infer that defendant’s effort to correct the defect failed based upon this equivocal response, as the majority does, requires a quantum leap of deduction that effectively relieves plaintiff of his burden of proof on the issue, particularly in the absence of any evidence that plaintiff knew or could have known exactly where the repair was made. It is noteworthy that defendant had to remove the engine from plaintiff’s vehicle in order to do the repair and, as part of the repair process, the surface of the repaired area was ground smooth to match the original surface.
Given the undisputed expert testimony that defendant properly performed an accepted repair technique which stopped the original coolant leak, and in the absence of any evidence as to the cause of the subsequent coolant leak, and in view of *308the evidence that coolant leaks can be attributed to causes other than a cracked engine block, it is clear that the majority has engaged in pure conjecture to hypothesize that the appearance of a coolant leak some three months after the repair was made establishes that defendant failed to repair the crack in the engine block which caused the original coolant leak. Even assuming that the inference drawn by the majority could be characterized as fair and reasonable, it is not the only fair and reasonable inference. It is at least equally as likely, based upon the evidence in this record, that the subsequent coolant leak was totally unrelated to the original leak, and was caused by some other defect that manifested itself during plaintiffs regular use of the vehicle for three months after the defect that caused the original leak was corrected. The circumstantial evidence is inadequate, as a matter of law, to prove that defendant failed to correct the defect which caused the original coolant leak, but even if the evidence could be considered sufficient to raise a question of fact on the issue, the majority’s resolution of that issue is contrary to the weight of the evidence. Accordingly, Supreme Court’s judgment in favor of defendant should be affirmed.
Ordered that the judgment is reversed, on the law, with costs, judgment awarded in favor of plaintiff and matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision.