On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4952-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Messano, Yannotti and Espinosa.
Plaintiff Orthopedic Sports Medicine Associates appeals from an order that enforced a settlement of its lawsuit for unpaid fees against defendant Anthony Bonetti. We affirm.
The lawsuit in this matter sought payment of $74,095 for medical services rendered between November 2006 and May 2007. However, at his deposition, Ira Esformes, M.D., the principal of defendant, acknowledged that the actual amount sought was $44,000. With a March 30, 2011 trial date approaching, the parties engaged in settlement discussions. By faxed letter dated February 24, 2011, plaintiff's counsel presented an offer of settlement to defendant's counsel as follows:
This is to confirm the voice mail message of earlier today. My client's present settlement position is that it will accept $30,000.00, to be paid at the rate of $550.00 per month. This is conditioned upon a Stipulation of Settlement being filed with the Court which provides that in the event of default, Judgment will be entered for $44,095.00, minus any payments made pursuant to the Stipulation of Settlement.
In evaluating the entire situation, I believe this position is more than fair. We have been negotiating based on the principal amount, without consideration of interest. The services were provided for the most part in late 2006 and no payment has been made to date. If this proceeds to trial and plaintiff prevails using the ninety-fifth percentile for approximately $44,000.00, if pre-Judgment interest was awarded at the Court rate, it would amount to over $10,000.00.
Assuming the Court accepted the defendant's position and used the fiftieth percentile, the balance would be roughly fifty percent or approximately $22,000.00. If pre-Judgment interest was awarded on that amount, it would be $5,060.00, which would bring the award up to over $27,000.00.
It is most likely that the Court will come out somewhere in between those two numbers and if that is the case and preJudgment interest is awarded, we would be well over the $30,000.00 that plaintiff is willing to accept at this time.
Moving forward, although the present Court rate including the two percent added in Law Division cases would be only 2.5% per year, on $30,000.00 that would be interest of approximately $750.00 per year. Based on the monthly payment your client wants to make, it would take almost five years to make payment.
It is undisputed that defense counsel called plaintiff's counsel later that day and stated the offer was acceptable, before the offer expired. Defendant's counsel stated in a certification that "[i]t subsequently came to [his] attention that Ira Esformes, M.D., the principal of plaintiff, would not accept the payout over four years unless there was a lien on real estate." As a result, counsel then sent a letter to defendant's attorney, dated February 28, 2011, which states in part:
This is to confirm the voice-mail I left for you this morning.
It has come to my attention that Dr. Esformes only authorized the payout on the settlement at the rate of $550.00 per month with the understanding that there ...