Weiss, J. P. (dissenting). I would affirm the judgment. Of the four witnesses called by plaintiff as part of her direct case, only defendant Stephen Ether testified as to southbound traffic on U.S. Route 9W. His testimony can be summarized briefly. Ether was proceeding southbound on Route 9W. As he approached the intersection of Route 9W and the Schoharie Turnpike, he observed a truck awaiting an opportunity to make a left hand turn and proceed easterly on the Schoharie Turnpike. Ether unambiguously testified that the southbound lane of Route 9W was of sufficient width to enable him to pass on the right of the truck without crossing over the white fog line which separated the highway and the shoulder. There is nothing in the record other than mere speculation by plaintiff’s attorney to suggest that Ether ever left the southbound travel lane. Plaintiff was asleep and her driver, defendant Maurice McKenna, whose view northward on Route 9W was impaired by another truck which passed him on the right and then proceeded north on Route 9W, testified that he saw neither the truck on Route 9W nor Ether. McKenna called as a witness the responding police officer, who testified that he *760had no recollection of the accident apart from his report.* The record is completely barren of any support for a charge to the jury based upon the fact that Ether may have left the roadway, and therefore such a charge (PJI 2:84A) was properly denied (see, Hardy v Sicuranza, 133 AD2d 138).
Plaintiff next contends that Supreme Court misstated the law in response to a question from the jury. The jury asked, "Did * * * Ether have a right to pass the truck on the right even if it meant going onto the shoulder?” The court did not directly answer the specific question but instead stated that "[ujnder the facts and circumstances of this case, there is no statute which prohibited * * * Ether from passing on the right. However, even in the absence of any statute Ether was under a duty to use reasonable care in passing the truck as I previously charged to you.” This instruction was technically correct since the statute permits passing on the right of a vehicle that is turning left if the movement can be made in safety and without driving off the main-traveled portion of the roadway (Vehicle and Traffic Law § 1123 [b]). No exception having been taken, plaintiff is deemed to have waived her objection (see, CPLR 4110-b; Seneca Dress Co. v Bea-Jay Mfg. Corp., 156 AD2d 894, 895). Nor was this objection preserved by plaintiff’s objection to the denial of her earlier request to charge PJI 2:84A—"Car Leaving Road”, which involves neither statutes nor passing on the right.
Since there is not a scintilla of evidence in the record to support plaintiff’s contentions, the judgment should be affirmed.
Ordered that the judgment is reversed, on the law, with costs, and matter remitted to the Supreme Court for a new trial.
The police report of the accident is not in the record. Moreover, the police officer stated that he could not remember any of the facts surrounding the accident.