        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

331
CA 15-00830
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


MICHELLE M. WALDO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MINSOO KANG AND JUNGHEE PARK,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


CELLINO & BARNES, P.C., ROCHESTER (ROBERT L. VOLTZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BROWN & KELLY, LLP, BUFFALO (H. WARD HAMLIN, JR., OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Diane
Y. Devlin, J.), entered January 27, 2015. The judgment granted
defendants judgment against plaintiff and awarded costs to defendants.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the motion for a
directed verdict on the issue of negligence is granted, and a new
trial is granted on the issues of serious injury and damages.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries she allegedly sustained in a motor vehicle
accident, and she now appeals from a judgment following a jury verdict
finding that she was 25% liable for the accident and that she did not
sustain a serious injury. We agree with plaintiff that various
rulings of Supreme Court were in error and that she is therefore
entitled to a directed verdict on the issue of negligence and a new
trial on the issues of serious injury and damages.

     We agree with plaintiff that the verdict finding her negligent is
against the weight of the evidence. Indeed, we conclude that the
court erred in failing to grant plaintiff’s motion seeking a directed
verdict on the issues whether Junghee Park (defendant) was negligent
and whether such negligence was the sole proximate cause of the
accident. “It is well settled that a driver who has the right-of-way
is entitled to anticipate that the drivers of other vehicles will obey
the traffic laws requiring them to yield” (Heltz v Barratt, 115 AD3d
1298, 1299, affd 24 NY3d 1185 [internal quotation marks omitted]).
Here, the record establishes that plaintiff was proceeding within the
speed limit through a green light at the time of the collision and
that she was therefore entitled to assume that defendant would stop
                                 -2-                           331
                                                         CA 15-00830

for the red light. Moreover, defendants offered nothing other than
speculation to establish that plaintiff could do anything other than
slam on her brakes in the seconds prior to impact (see id. at 1299;
Wallace v Kuhn, 23 AD3d 1042, 1043).

     We also agree with plaintiff that the court improperly precluded
a physician from testifying at trial because of the lack of an expert
disclosure. “[P]reclusion [of expert testimony] for failure to comply
with CPLR 3101 (d) is improper unless there is evidence of intentional
or willful failure to disclose and a showing of prejudice by the
opposing party” and, here, defendants failed to provide any evidence
of a willful or intentional failure to disclose by plaintiff or any
evidence of prejudice (Sisemore v Leffler, 125 AD3d 1374, 1375
[internal quotation marks omitted]). Such preclusion warrants a new
trial on the issues of serious injury and damages (see Tronolone v
Praxair, Inc., 39 AD3d 1146, 1147). We also note that, because there
was no timely objection to the verdict sheet, plaintiff’s contention
that the court erred in precluding the jurors from awarding damages in
excess of basic economic loss unless they found that she had suffered
a serious injury is not preserved for our review (see Howlett Farms,
Inc. v Fessner, 78 AD3d 1681, 1683, lv denied 17 NY3d 710; MacKillop v
City of Syracuse, 48 AD3d 1197, 1198).

     In view of our determination, we see no need to address
plaintiff’s remaining contention with respect to inconsistency of the
verdict.




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
