Justice Paul Goetz

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Smolen moved for a default judgment, while Hernandez and Starushka Taxi Inc. (defendants) sought acceptance of their late answer and a stay of the action pending completion of a criminal case against Hernandez. Defendants’ counsel claimed they were unable to answer in a timely fashion partly as the carrier was confirming coverage. The court noted delays caused by a carrier confirming coverage was held akin to law office failure, was still good law and may constitute a reasonable excuse. Yet, same should be rejected if the conduct was part of a pattern of persistent and willful inaction, dilatory behavior, or willful default or neglect. The court found no persistent or willful inaction on defendants’ part, noting Hernandez’s affidavit established a meritorious defense for defendants in that his car did not come into contact with Smolen. Also, there was no prejudice to Smolen in directing acceptance of the late answer. Further, Hernandez’s criminal attorney’s affirmation indicated Hernandez would assert his Fifth Amendment privilege against self-incrimination if deposed or directed to testify in the criminal action. Thus, not granting a stay would cause defendants to suffer severe prejudice of being deprived a defense. A stay was granted and Smolen was directed to accept defendants’ answer.