dissent and vote to affirm in the following memorandum by Casey, J. Casey, J. (dissenting). We disagree with the majority’s legal conclusion that plaintiff was not subject to the dismissal provisions of CPLR 3216 until after *935completion of discovery. The prior order, which denied plaintiff’s motion seeking to vacate defendants’ 90-day demands until completion of discovery, specifically stated that “plaintiff is subject to the provisions of [CPLR] 3216”. Although this order granted the parties “the right to complete all desired discovery during the next sixty (60) days and prior to the effective date of this order”, it expressly provided that “this order shall be effective sixty (60) days after * * * service”. Plainly, therefore, plaintiff was subject to the provisions of CPLR 3216 following the expiration of the 60-day period.
Since plaintiff concededly failed to meet the time requirement of CPLR 3216 following expiration of the 60-day extension, Special Term was authorized to dismiss the action unless plaintiff showed a justifiable excuse for the delay and a meritorious cause of action (CPLR 3216, subd [e]; Riley v Makowski, 92 AD2d 664). Plaintiff completed his discovery in November, 1982 and defendant David Thompson was able to complete all disclosure on April 8, 1983, when plaintiff finally appeared for a physical examination pursuant to court order. Thereafter, plaintiff did nothing for more than three months. Plaintiff claims that defendant Thompson acquiesced in the delays, but the record shows otherwise. As noted above, defendant Thompson moved to compel plaintiff to appear for a physical examination after plaintiff failed to appear voluntarily. Also, in June, 1983, defendant Thompson advised plaintiff of the continuing requirements of CPLR 3216 and demanded that he resume prosecution, but plaintiff did not respond. Plaintiff also claims that his inaction was justified by defendant Thompson’s failure to provide a copy of the physician’s report. However, despite defendant Thompson’s reminder in June, 1983 of the requirements of CPLR 3216, plaintiff took no steps to either obtain a protective order (CPLR 3103) or compel production of the physician’s report (CPLR 3124). In short, plaintiff has presented no justification for his failure to take any steps to prosecute his action.
Although all prior delays by a plaintiff will be forgiven if he timely complies with a 90-day demand (see Stein v Wainwright's Travel Serv., 92 AD2d 961), the untimely filing of a note of issue does not preclude Special Term from dismissing a complaint for want of prosecution (see CPLR 3216, subd [d]; Guenther v Wilson Mem. Hosp., 93 AD2d 957, mot for lv to app den 60 NY2d 553). This principle is particularly apt here, since plaintiff ignored defendant Thompson’s letter advising him of the need to file a note of issue and since plaintiff filed his note of issue only after the codefendant had moved to dismiss for failure to prosecute.
We note that the proceedings culminating in Special Term’s original order of dismissal are irrelevant, for plaintiff’s motion *936to reargue was granted, and upon reargument Special Term entered the order on appeal herein, which was decided without reference to the failure of plaintiff’s counsel to appear on the original return date.*
In summary, the majority’s order of dismissal is based upon two conclusions of law: (1) that plaintiff was not subject to the dismissal provisions of CPLR 3216 until completion of discovery, and (2) that defendant Thompson’s failure to provide a copy of the physician’s report rendered discovery incomplete. We disagree with these legal conclusions, as well as a third: that Special Term was precluded from dismissing the complaint by plaintiff’s belated filing of a note of issue. In our view, plaintiff was subject to the provisions of CPLR 3216, pursuant to the terms of the earlier order denying plaintiff’s motion to vacate defendant’s 90-day demands, and, therefore, Special Term had the discretionary power under CPLR 3216 to dismiss plaintiff’s complaint for failure to prosecute when he failed to comply with those demands. Accordingly, we would affirm Special Term’s order striking plaintiff’s note of issue and dismissing the complaint.
Any confusion as to whether counsel for defendant Thompson would appear on the original return date of the motions to dismiss, brought first by defendant Glens Falls Hospital and thereafter by defendant Thompson, is directly attributable to plaintiff’s belated decision to discontinue as to defendant hospital.