dissents in a memorandum as follows: I would affirm the order restoring this action to the active pre-note calendar and denying defendants’ cross motion to dismiss on the condition that plaintiff’s guardian appear at a General Municipal Law § 50-h hearing.
The action was brought on behalf of a brain-damaged infant whose severe injures were allegedly caused by negligence in the course of his delivery in June 1991. The infant’s grandmother was granted custody of him on December 21, 1992, and was declared his legal guardian on October 13, 1995. A motion for leave to file a late notice of claim was granted on May 2, 1996, and the action was commenced in 1998. The motion for late notice of claim was supported with the affirmation of a physician, who observed that the hospital records stated that at birth the infant was noted to be “foul smelling, with poor tone, and apneic,” and who offered his opinion that the attending doctors departed from accepted medical practice by failing to timely diagnose clear signs of chorioamnionitis and to timely deliver the infant, allowing neonatal sepsis to develop, as a result of which the infant sustained severe psychomotor delay.
The section 50-h hearing was initially noticed for September 15, 1998; however, when the guardian appeared on that date with her attorney at the New York City Law Department’s offices, she was informed that Corporation Counsel was not handling the matter. By letter dated October 21, 1998, defendants confirmed the guardian’s request to reschedule the section 50-h hearing to October 27, 1998. Approximately two years passed without any hearing or any other steps being taken by either side, until on June 26, 2000, when counsel for the infant moved for the appointment of a public guardian for the limited purpose of representing the infant, counsel having been unable to secure the guardian’s appearance at a hearing. Counsel *284explained in the application that the guardian was unable to take the necessary time off from work to appear for a hearing, as she was raising several grandchildren, two of whom required constant medical attention, and she was also working outside the home to support the family, and all her available paid personal days off were needed to cover the children’s medical visits.
In April 2001, the IAS court granted the motion “to the extent that a guardian ad litem will be appointed unless the guardian . . . appears for a 50-H hearing at a time and place convenient for her within 45 days of entry of this order.” The guardian did not appear for the hearing within the 45-day time period; however, no further steps were taken to secure the appointment of a guardian ad litem for the infant.
Nor were any other steps taken by either party until a conference on March 23, 2005, at which time a 90-day notice was issued directing plaintiff to file a note of issue on or before June 21, 2005. The calendar clerk for plaintiffs counsel asserts that he failed to file the notice of issue within the time prescribed; an attorney at the firm states that their office attempted to file a note of issue but it was rejected by the court clerk because discovery was not yet complete.
The matter was either marked off calendar or dismissed at a calendar call on June 21, 2005. Plaintiff moved to restore the action on or about October 3, 2005.
The court’s decision to grant plaintiffs motion and restore the action to the pre-note of issue calendar was a provident exercise of discretion. Plaintiff established both a reasonable excuse for failing to comply with the 90-day notice to file the note of issue, and a meritorious cause of action (CPLR 3216 [e]; see Grant v City of New York, 17 AD3d 215, 216 [2005]).
It is self-evident that in more than one instance, counsel for plaintiff failed to take the steps necessary to ensure the protection of plaintiffs interests, the most recent being the failure to complete discovery and file a note of issue. Nevertheless, this clear case of law office failure establishes an acceptable excuse for the delay (see Muriel v St. Barnabas Hosp., 3 AD3d 419 [2004]). While the excuse of law office failure may be insufficient where there is a pattern of neglect or delay on the plaintiffs part (cf. Gavillan v City of New York, 11 AD3d 217 [2004]), here the asserted pattern of delay amounts to the guardian’s being overwhelmed with childcare and work responsibilities, counsel for both sides being inactive between the IAS court’s order of April 2001 and the conference on March 23, 2005, and plaintiffs counsel failing to take action for some six *285months following issuance of the 90-day notice. Under the circumstances, the portion of the delay attributable to the guardian is entirely understandable and excusable, and the portion attributable to law office failure should not defeat the rights of the injured infant on whose behalf the action was brought.
The requirement that plaintiff demonstrate a meritorious cause of action is satisfied by the previously submitted affirmation of plaintiffs medical expert, contained in the court’s file. There is nothing inappropriate about taking judicial notice of the fact that the requisite affirmation had previously been obtained and submitted by plaintiff in the underlying proceeding, and that it was contained in the court’s file. Doing so does not require the court to accept the accuracy of the opinion expressed in that affirmation; it merely recognizes that the court (and the opposing party) already has in its possession the requisite evidentiary materials. It is excessively punitive to deprive the injured infant plaintiff of his day in court because of counsel’s failure to submit an affirmation to the court when that same affirmation is already in the court’s possession, having been previously obtained and submitted.