In an action inter alia to recover the balance due for goods sold and delivered, plaintiff appeals from so much of an order of the Supreme Court, Westchester County, dated January 7, 1976, as denied its motion for leave to serve a second amended complaint. Order[*575] affirmed insofar as appealed from, with $50 costs and disbursements. The death of the witness through whom defendant’s depositions were taken and the delay of 40 months between the completion of disclosure proceedings and the making of the motion to amend when the case was called for trial would have resulted in "substantial prejudice” had the motion been granted: appellant’s "gross laches” warranted the denial of the motion (see De Fabio v Nadler Rental Serv., 27 AD2d 931). Hopkins, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.