## Facts

- David J. Vitale, Jr. obtained a final judgment for $6,317 plus costs against Hotel California, Inc.
- A writ of execution issued, and Vitale directed the Monmouth County Sheriff to levy on cash and personal property at “The Fast Lane,” a bar operated by the judgment debtor.
- Vitale repeatedly instructed that the levy occur during late-night operating hours (about 10 p.m. to 2 a.m.), when cash would be present.
- The sheriff’s office initially indicated it would not levy because the bar was open only late at night and suggested the writ would be returned unsatisfied.
- A deputy attempted entry with police assistance but was denied access by bouncers and withdrew due to feared violence.
- After the sheriff claimed a court order was needed to enter, Vitale obtained an order authorizing entry and arrest of persons interfering with execution.
- The sheriff later made one successful levy, seizing $714 in cash and certain personal property.
- The sheriff then refused to make further levies under the same writ before the return date, despite the remaining unsatisfied judgment.
- Vitale moved to amerce the sheriff under N.J.S.A. 40A:9-109 for failure to execute the writ in accordance with reasonable instructions.

## Issues

1. Whether multiple (successive) levies may be made under a single writ of execution before the return date when an initial levy does not satisfy the judgment.
2. Whether the judgment creditor’s instructions to levy at a cash-generating bar during its operating hours were reasonable such that the sheriff was obligated to follow them.
3. Whether the sheriff’s refusal to conduct further levies constituted a statutory failure of duty supporting amercement under N.J.S.A. 40A:9-109.
4. Whether the creditor showed loss or damage caused by the sheriff’s failure to perform.

## Decision

- The Law Division held that successive levies are permitted under one writ before the return date if an initial levy is insufficient to satisfy the judgment.
- The court found the creditor’s instructions reasonable because they targeted identifiable, reachable assets at the time they were most likely to exist, and safety concerns could be addressed through police assistance and a court order.
- The court concluded the sheriff failed to perform a duty imposed by law regarding execution of the writ and was subject to amercement for the creditor’s resulting loss.
- The Appellate Division affirmed per curiam, adopting the Law Division’s reasoning.

## Legal Principles

- A writ of execution may support multiple levies before its return date until the judgment is satisfied or execution efforts are properly exhausted.
- A sheriff must execute writs of execution diligently and in accordance with the judgment creditor’s reasonable instructions concerning identifiable assets.
- Under N.J.S.A. 40A:9-109, a sheriff who fails to perform legally imposed duties relating to writs of execution, causing loss to the judgment creditor, may be amerced in the amount of that loss for the creditor’s use.
- Safety or logistical concerns do not justify nonperformance where reasonable measures (including court orders and police presence) can permit execution to proceed.

## Conclusion

The court affirmed that successive levies may be made under a single writ before the return date and upheld amercement against the sheriff for refusing to continue levies consistent with reasonable creditor instructions, resulting in an unsatisfied judgment.


Vitale v. Hotel Cal., Inc., 187 N.J. Super. 464, 455 A.2d 508 (App. Div. 1982)