Vitale v. Hotel California, Inc

Brief Fact Summary.

David J. Vitale, Jr., (Plaintiff) brings this motion to hold liable the Sheriff of Monmouth County, William Lanzaro, (Sheriff), for failing to execute a writ based on a judgment against Hotel California, Inc. (Defendant).

Synopsis of Rule of Law.

Further levies under one writ are authorized under the same writ before the return day if the initial levy does not satisfy the judgment. If a sheriff or acting sheriff fails to perform a duty imposed upon him by law in respect to writs of execution resulting in loss or damage to the judgment creditor, he shall be subject to amercement in the amount of such loss and damage to and for the use of the judgment creditor.

Facts.

Plaintiff obtained a final judgment against Defendant and thereafter learned that Defendant held a liquor license for “The Fast Lane,” (the “Bar”), a bar located in New Jersey. A writ of execution was issued and delivered to Sheriff along with a cover letter from Plaintiff instructing him to levy upon all monies and personal property at the Bar. A check was included for costs.
The sheriff’s office indicated that a levy was not possible since the Bar was only open from 10pm to 2am and the writ would be returned unsatisfied. Plaintiff insisted that it was necessary to proceed on levy during the open hours. The deputy sheriff stated that he went to the Bar with a police officer and was denied entrance by the Bar’s bouncers. Fearing violence might ensue, the officers left. Plaintiff advised the deputy to make the levy and arrest anyone for interfering with the execution pursuant to the officer’s statutory authority.
The deputy informed Plaintiff that to enter the establishment he would need a court order. The New Jersey Superior Court so ordered. The deputy returned to the bar and seized $714 in cash and other personal property. The deputy then refused to make further levies. Plaintiff consulted with County counsel and threatened to seek amercement. This action followed. Meanwhile Plaintiff discovered and levied a corporate account but was unsuccessful as the account was overdrawn.

Issue.

Whether successive levies can be made under one writ.

Whether the sheriff rightly refused to honor an unreasonable levy request.

Does the conduct of the sheriff subject him to amercement.

Whether Plaintiff demonstrated a loss.

Held.

Yes. Successive levies can be made under the same writ if the initial levy does not satisfy the judgment.

No. The request was not unreasonable given the circumstances and the Sheriff wrongly refused to honor it.

Yes. The demand by Plaintiff was reasonable and the Sheriff’s neglect to levy subjects him to amercement.

Yes. Given that only one levy was made even though the bar was open most of the summer and is now closed for the winter, Plaintiff has demonstrated a loss.

Discussion.

If property levied on under a writ is not sufficient to satisfy the execution, a return should not be made without a showing that attempting another levy would be fruitless. Had the Sheriff returned the writ, Plaintiff could then have obtained an alias writ expecting that more money would be available. Since an alias writ should not issue before the original execution is returned and may be voidable otherwise, Plaintiff was under not duty to seek an alias writ.

The Sheriff contends that the request was unreasonable because it would require the deputies to attempt levy an unknown number of occasions. The seizure of the $715 demonstrated the effectiveness of this mode of levying and by extrapolation it would have had to be repeated nine times. This was not excessive because the Bar was basically a summer operation. The late hour was not unreasonable because those were the Bar’s hours of operation. Further, deputies may be obliged to work at times of the day and week when the rest of the population may be asleep or recreating. The threat of violence engendered by imposing the levy is not supported by the record and seems more to be a vague averment that attempting to carry out the levy may have triggered a violent reaction. However, assuming it was legitimate, the privilege of civil service occasionally demands risking bodily harm to oneself. Only in this way will the lawless s be kept from becoming the de facto lawmakers.

The Sheriff suggests that Plaintiff should have pursued other more reasonable means to satisfy the judgment but points to no failure of Plaintiff to satisfy any statutory prerequisite. Plaintiff has done all that was necessary with respect to the execution. In light of Plaintiff’s persistent efforts to negotiate a solution with the Sheriff and judgment debtor and the unsuccessful levy on the bank account, the demand upon the Sheriff seems reasonable.

Plaintiff is not bound to prove the value of the property subject to levy. Plaintiff must show that the officer’s conduct has deprived him of a substantial benefit to which he was entitled. Based on the findings that the execution was in the hands of the Sheriff but only one levy was actually made while the Bar was open, Plaintiff was denied the benefit of the writ.