I respectfully dissent. Plaintiffs demonstrated a reasonable excuse for their failure to comply with the court-issued 90-day demand, as well as a meritorious cause of action.
The record shows that the discovery delays in this consolidated action were occasioned principally by defendants. At the time the court sua sponte dismissed the action for failure to prosecute, the depositions of Dr. May and Dr. Facelle had yet to take place, and defendants had yet to designate a physician to perform an independent medical examination (IME) of the injured plaintiff, as they had been ordered to do on May 3, 2007. The so-ordered stipulation entered that day provided that the physician defendants were to appear for examinations before trial (EBTs) on or before June 26 and July 10, 2007, respectively, and that the hospital defendants were to designate representatives to appear for EBTs on or before August 21, 2007. Defendants were ordered to designate a physician to perform the IME and to conduct the IME by July 16, 2007. The so-ordered stipulations stated that there were to be no further adjournments of the IME and that defendant Dr. May was to appear by July 10, 2007, without adjournment. Plaintiff was directed to file the note of issue on or before December 27, 2007. Defendants provided none of the court-ordered discovery, despite warnings that there would be no further adjournments. A defendant who fails to comply with a plaintiffs legitimate discovery demands, and thus prevents the filing of the note of issue, cannot seek dismissal of a plaintiffs complaint for failure to file a note of issue in response to a “90-day demand” (see Donegan v St. Joseph’s Med. Ctr., 283 AD2d 152 [2001]).
Since the discovery delays herein were caused by defendants, the case should not have been dismissed, even in the absence of a medical affidavit demonstrating the merit of the action (see Donegan, 283 AD2d at 153). In any event, the merit of the action was demonstrated, inter alia, through the affirmation of plaintiffs’ physician, board certified in internal medicine and gastroenterology, who opined that plaintiff, during procedures performed in July 2002, suffered biliary injuries caused by deviations from standards of good and accepted medical practice by Dr. May and Dr. Facelle. Plaintiffs expert stated that Dr. May created a “surgical emergency” during a routine procedure by passing a wire and catheter through the distal common bile duct, rather than performing a sphincterotomy to extract a stone in the duct, as he had been directed to do by Dr. Facelle. The catheter passed by Dr. May perforated plaintiffs abdominal cavity, occasioning the “surgical emergency” and resulting in *523numerous complications including blood loss, transection of the bile duct, hepatic necrosis, hyperbilirubinemia, acute renal insufficiency and hepatic encephalopathy. Plaintiffs expert further opined that rather than performing an immediate repair of the bile duct, Dr. Facelle should have “pursued non-operative drainage of the bile duct, drainage of the peritoneal cavity, and performed bile duct repair” at a later date when plaintiffs peritonitis had resolved. Plaintiffs expert opined that plaintiffs multiple subsequent hospitalizations and development of secondary biliary cirrhosis and sequelae were caused by the biliary injuries she suffered in July 2002, and opined that there was a high likelihood that plaintiff will require a liver transplant in the intermediate future. In his discharge summary, dated June 27, 2002, Dr. Facelle states, inter alia, that Dr. May passed the catheter “against [his] explicit instructions not to further probe the duct, but to stop with just doing a sphincterotomy,” since Dr. Facelle was concerned about possible injury to the duct.*
On the motion to renew, counsel explained that the conference resulting in the May 3, 2007 so-ordered stipulation was handled by an “of counsel” attorney, and thus, the December 27, 2007 deadline set by the court for the filing of the note of issue was not entered into the firm’s calendar system as would ordinarily be done. Counsel further stated that had he known about the deadline, he would have moved for an extension of time to file the note of issue and/or to strike defendants’ answers based on defendants’ failure to comply with discovery. I would hold that this failure to calendar the date was, under the circumstances, excusable law office failure (see Kaufman v Bauer, 36 AD3d 481 [2007] [deadline missed due to personnel change at law firm]; Werner v Tiffany & Co., 291 AD2d 305 [2002] [counsel misplaced calendar and in reconstructing commitments forgot deadline]), particularly given defendants’ delays and plaintiffs’ inability, as a direct result thereof, to certify that discovery was complete. While this case was decided before the effective date of the amendment to CPLR 205 (a), which provides that an action may not be dismissed under CPLR 3216 unless the judge sets forth “on the record the specific conduct constituting the neglect, which conduct shall demonstrate a *524general pattern of delay in proceeding with the litigation,” it is not without significance that plaintiffs did not engage in a pattern of neglect.
While I agree with the motion court that the better practice would have been for plaintiffs to have made a motion to compel discovery or for an extension of time to file the note of issue, the failure to take these steps should not result in dismissal of a meritorious cause of action. It is the long established public policy of this State to decide cases on their merits (see Kaufman v Bauer, 36 AD3d at 483).
It is true that the present record does not disclose an independent basis for the negligence of the hospital defendants. As plaintiffs note, however, they have not yet had the opportunity to depose representatives of the hospital defendants. In any event, the showing of merit required on a motion to restore or to vacate a default (to the extent such a showing is even required, since, as discussed supra, defendants failed to respond to plaintiffs’ legitimate discovery demands and effectively prevented the filing of the note of issue) is minimal (see Palermo v Lord & Taylor, 287 AD2d 258 [2001]).