Opinion
September 8, 1997
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly adhered to its prior determination awarding summary judgment in favor of the defendant in Action No. 2, Waldbaum, Inc. (hereinafter Waldbaum). Waldbaum demonstrated prima facie its entitlement to judgment as a matter of law by presenting evidence that it neither created the dangerous condition nor had actual or constructive notice thereof ( see generally, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967; Kraemer v. K-Mart Corp., 226 A.D.2d 590; Rotunno v. Pathmark, 220 A.D.2d 570). The plaintiff's submissions, including the "newly proffered" material he placed before the court on renewal, largely consisted of surmise and conjecture and failed to constitute evidence in admissible form sufficient to rebut Waldbaum's prima facie showing ( see, e.g., Xenakis v. Waldbaum, Inc., 237 A.D.2d 433; Williams v. Waldbaums Supermarkets, 236 A.D.2d 605; Gottlieb v. Waldbaums Supermarkets, 226 A.D.2d 344).
Moreover, we discern no improvident exercise of discretion in the denial of the plaintiff's application pursuant to CPLR 3025 (b) to amend his bill of particulars to assert a new theory of recovery based on a purported design and/or construction defect. The plaintiff came forward with no reasonable excuse for his extensive delay in seeking leave to amend, the proposed amendment was not supported by any affidavit of an expert or other statement of merit, and granting the application at such a late stage in the case clearly would prejudice Waldbaum ( see, Volpe v Good Samaritan Hosp., 213 A.D.2d 398; Thompson v. Connor, 178 A.D.2d 752; Bertan v. Richmond Mem. Hosp. Health Ctr., 106 A.D.2d 362; Perricone v. City of New York, 96 A.D.2d 531, affd 62 N.Y.2d 661).
O'Brien, J.P., Sullivan, Altman and McGinity, JJ., concur.