Carro and Rubin, JJ., dissent in a memorandum by Rubin, J., as follows: There is no doubt that plaintiff delayed in prosecuting this matter and that plaintiff failed to respond to defendant P&M Leasing Corporation’s 90-day demand (CPLR 3216 [b] [3]) either by serving and filing a note of issue (CPLR 3216 [c]) or by moving for an extension of time in which to comply with the demand pursuant to CPLR 2004 (Carte v Segall, 134 AD2d 397, 398; Nappi v St. John’s Cemetery, 73 AD2d 687). Nevertheless, plaintiff may still avoid dismissal of his action by demonstrating that he has a reasonable excuse for his delay in serving the note of issue and a good and meritorious cause of action (CPLR 3216 [e]; Turman v Amity OBG Assocs., 170 AD2d 668, citing Papadopoulas v R.B. Supply Corp., 152 AD2d 552). In this regard, delay prior to the service of the demand is immaterial. "Whether the plaintiff has delayed seven months or seven years or even seventy years, CPLR 3216 with its 90-day-demand procedure applies equally” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3216:11, at 640).
The record demonstrates that, when defendant P&M Leasing Corporation served its demand, discovery proceedings were still pending, and this Court has held that "it was appropriate to refrain from placing the case on the Trial Calendar because of the pendency of disclosure proceedings” (Gibson v D'Avanzo, 99 AD2d 766). Thus, an excuse for failing to file a note of issue within 90 days following service of the demand is established.
Plaintiff’s affidavit of merit states, and a police accident report confirms, that he collided with the vehicle owned by P&M Leasing Corporation at an uncontrolled intersection. The affidavit further states that plaintiff’s view of the vehicle, alleged to be travelling at an excessive rate of speed, was obscured by an apartment building, making avoidance of the collision impossible. The absence of any traffic control device at the intersection reflects comparative negligence on the part of each driver and makes out a prima facie case.
It should be noted that the intent of the notice procedure prescribed by CPLR 3216 is to alert an inattentive plaintiff to the need to take steps to advance the litigation and prepare for trial. If a plaintiff thereafter takes appropriate measures in furtherance of his cause, he cannot be deemed to have abandoned the litigation and dismissal is unwarranted. Where, as here, a note of issue cannot be filed in response to a *42demand because pending discovery precludes the filing of a certificate of readiness for trial (Uniform Rules for Trial Cts [22 NYCRR] § 202.21), the delay in filing is beyond the plaintiff’s control, "and the right to have all pre-filing delay put beyond court inquiry should not be forfeited if the plaintiff meets difficulty in this regard” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3216:25, at 651). Within three weeks of receiving the demand, plaintiff served defendant with a bill of particulars, medical authorizations, expert witness authorizations and a response to a notice of discovery and inspection. Thereafter, plaintiff attempted to schedule a mutually convenient date to take deposition testimony.
Accordingly, plaintiff responded diligently to defendant’s demand to serve and file a note of issue, and it was an abuse of discretion to dismiss his complaint for failure to prosecute.