Todd Equipment Leasing Co. v. Santacroce

Appellate Division of the Supreme Court of New York

Todd Equipment Leasing Co. v. Santacroce

133 A.D.2d 831, 520 N.Y.S.2d 403, 1987 N.Y. App. Div. LEXIS 51868

Appellate Division of the Supreme Court of the State of New York·Decided October 26, 1987·Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel the respondent Sheriff of Nassau County to proceed with the service of an incoine\ execution, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Roncallo, J.), dated October 16, 1986, which dismissed the petition.

Ordered that the judgment is affirmed, with costs.

[832]*832The petitioner seeks to compel the respondent Sheriff to collect on a judgment listed on a schedule of debts discharged in bankruptcy, pursuant to an order of the United States Bankruptcy Court of the District of Connecticut (Schwartz-berg, J.), dated January 30, 1981. The petitioner is not entitled to the mandamus relief requested.

Absent a judicial determination of nondischargeability of the debt in question, the order of discharge provided to the Sheriff is facially valid. Therefore, the respondent acted properly in refusing to collect on the scheduled debt. Mandamus will not lie to compel the respondent to violate a court order (see, e.g., Matter of Burr v Voorhis, 229 NY 382; Matter of Fried v Fox, 49 AD2d 877). Lawrence, J. P., Weinstein, Kooper and Sullivan, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to compel the respondent Sheriff of Nassau County to proceed with the service of an incoine\ execution, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Roncallo, J.), dated October 16, 1986, which dismissed the petition.

Ordered that the judgment is affirmed, with costs.

[832]*832The petitioner seeks to compel the respondent Sheriff to collect on a judgment listed on a schedule of debts discharged in bankruptcy, pursuant to an order of the United States Bankruptcy Court of the District of Connecticut (Schwartz-berg, J.), dated January 30, 1981. The petitioner is not entitled to the mandamus relief requested.

Absent a judicial determination of nondischargeability of the debt in question, the order of discharge provided to the Sheriff is facially valid. Therefore, the respondent acted properly in refusing to collect on the scheduled debt. Mandamus will not lie to compel the respondent to violate a court order (see, e.g., Matter of Burr v Voorhis, 229 NY 382; Matter of Fried v Fox, 49 AD2d 877). Lawrence, J. P., Weinstein, Kooper and Sullivan, JJ., concur.

Todd Equipment Leasing Co. v. Santacroce, 133 A.D.2d 831, 520 N.Y.S.2d 403, 1987 N.Y. App. Div. LEXIS 51868 (N.Y. Ct. App. 1987).

Pincite

133 A.D.2d 831 (Todd Equipment Leasing Co. v. Santacroce) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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