Appeal from an order of the Supreme Court at Special Term (Shea, J.), entered December 2, 1983 in Warren County, which granted plaintiff’s motion to reargue but again ordered that plaintiff’s note of issue be stricken and the complaint dismissed.
This malpractice action was commenced on January 30,1981 and issue was joined in March, 1981. Defendants made demands pursuant to CPLR 3216 on April 8, 1982 and May 20, 1982, respectively. Subsequently, plaintiff obtained a protective order dated August 23, 1982 which, although it denied plaintiff’s motion to vacate the CPLR 3216 demands, granted both sides the right to complete all desired discovery proceedings “during the next sixty (60) days and prior to the effective date of this order”. Various discovery proceedings were scheduled and adjourned from time to time by both sides. The final proceeding was the examination of plaintiff by a physician selected by defendant David Thompson, which occurred on April 8, 1983. Plaintiff had requested a copy of the report of that examination, but it was not made available to him. Additionally, on May 5, 1983, attorneys for defendant Thompson forwarded to plaintiff’s attorney the transcript of his examination before trial, noting corrections to the transcript. Plaintiff filed his note of issue and statement of readiness on July 11, 1983, and on July 18, 1983, *934defendant Thompson moved to dismiss for failure to prosecute. The motion was argued, in the absence of plaintiff’s attorney, on July 28, 1983 and was granted by the court from the Bench on the grounds that plaintiff failed to comply with the prior protective order and the failure of plaintiff to appear and argue the motion to dismiss without prior permission of the court.
This complaint should not be dismissed. First, the record demonstrates a meritorious cause of action in malpractice against defendant Thompson. Secondly, by court order, plaintiff was not subject to the dismissal provisions of CPLR 3216 until after completion of discovery. Accordingly, since defendants had not furnished plaintiff with a copy of their physical examination of plaintiff, as required, discovery was not complete (CPLR 3121, subd [b]). Moreover, the forwarding of defendant Thompson’s depositions to plaintiff’s attorney on May 5,1983, noting corrections to the transcript, indicated that defendants’ attorneys viewed discovery as incomplete at that late date. Additionally, plaintiff actually served and filed his note of issue before receipt of defendant Thompson’s motion to dismiss. Since the filing of the note of issue prevents the court from looking into prior delay (see Stein v Wainwrighfs Travel Serv., 92 AD2d 961), the motion to dismiss should not have been granted (Calderon v Steele, 41 AD2d 736; Foisy v Penn Aluminum, 31 AD2d 783).
Finally, the transcript of the proceeding before Special Term on July 28, 1983, when the motion to dismiss was granted, demonstrates that the court relied heavily on the argument presented by the attorney for defendant Thompson and the failure of plaintiff’s attorney to appear for oral argument in Washington County. The record also demonstrates that plaintiff’s attorney was the addressee of a copy of a letter from the attorney for defendant Thompson to a codefendant, stating that no one from their office would be appearing to argue the motion. Under all these circumstances, plaintiff is entitled to relief, particularly in the absence of any showing of prejudice to defendant Thompson and the clear showing of a meritorious cause of action.
Order modified, on the law and the facts, with costs, by reversing so much thereof as directed that plaintiff’s note of issue be stricken and his complaint dismissed; the complaint and note of issue are reinstated; and, as so modified, affirmed. Kane, J. P., Weiss and Yesawich, Jr., JJ., concur.