SCHENECTADY — Forty-nine months after the landmark Nicholaus Building was torn down, its owners are still fighting for compensation.
Their lawsuit against the city of Schenectady was dismissed in U.S. District Court in Albany on May 4 and their lawyers on May 12 began a new action in state Supreme Court in Schenectady County seeking unspecified compensatory and punitive damages.
At the heart of the matter are two fairly simple facts: The historic building at 264-268 State St. became unstable in April 2016 as a construction project was underway next door, and was demolished on emergency city order in April 2017.
The tangled and interwoven series of legal claims and counter-claims that followed was anything but simple:
- Building owners Viroj and Malinee Chompupong sued the city of Schenectady in federal court for ordering the demolition; the demolition contractor and Metroplex Development Authority initially also were named as defendants but the court subsequently removed them from the case.
- The Chompupongs sued the construction contractor and development company working on the project next door, as well as other contractors involved in the project.
- The developer and construction contractor filed suit against each other with conflicting allegations of causing the instability.
- The operators of a restaurant on the ground floor of the Nicholaus Building sued the Chompupongs, the city and construction contractors.
- The city went after the Chompupongs for code violations for not repairing the building, but dropped that matter when the building (and the violations) ceased to exist.
- Instead, the city billed the Chompupongs for the $168,000 cost of demolition.
- The federal case the Chompupongs filed in August 2017 was dismissed last week without prejudice, meaning the claims could continue in state court. And so they did, only a week later.
But even the federal case may not be over: The Chompupongs’ attorney plans to appeal.
The Nicholaus Building dated to the early 1800s and stood alongside the Erie Canal for decades, before the waterway was paved over and became Erie Boulevard. For generations it housed a ground-floor restaurant, most recently the Thai Thai Bistro. The Chompupongs bought it in 2004.
It was a recognizable landmark with its round corner turret extending three stories above the sidewalk at the intersection of State and Erie, the city’s crossroads. It was a piece of the city’s heritage, in much better shape than its closest neighbors: The Olender mattress store, the old Robinson’s furniture building and the former BiMor Army & Navy, which were knocked down one by one because they were rotting away and/or had outlived their usefulness.
A $20 million, 117-unit residential project dubbed Electric City Apartments was designed to replace the three flattened retail buildings. During an early stage of the construction next door, the Nicholaus Building began to shake April 1, 2016, and was ordered vacated. It was stabilized and cordoned off as a threat to passersby.
Construction of Electric City was halted for a bit more than 12 months while the condition and fate of the Nicholaus Building was studied, debated and argued over.
On April 7, 2017, the city ordered it demolished immediately on the grounds that it had shifted and was a threat to public safety.
Soon after, construction of Electric City resumed.
The lawsuit filed Wednesday in Schenectady on behalf of the Chompupongs makes the following statements and allegations about “the shocking demolition of the beautiful Nicholaus Building”:
- A Feb. 14, 2017, report by Lakeside Engineering said the building was properly stabilized and not an imminent danger.
- Nonetheless, the city’s fire inspector, corporation counsel and acting building inspector decided to demolish it, with the approval of Mayor Gary McCarthy.
- Around 2 p.m. Friday, April 7, Corporation Counsel Carl Falotico phoned the Chompupongs and told them of the demolition order.
- The Chompupongs sought and received an emergency telephone hearing with a county-level judge on their request to block the hearing; during the call Falotico said the building had moved less than half an inch and acknowledged that was within the allowable threshold of movement set in the monitoring plan.
- Falotico said there was no time to conduct a formal hearing in court because of imminent danger of collapse but the city had been informed of the increased damage almost a month earlier.
- The judge denied the Chompupongs’ request and the city ordered the building demolished the evening and night of April 7. The city lacked a court order for this and did not provide proper notice or a hearing.
- The city did not consider alternative measures such as additional shoring or bracing that might have saved the Nicholaus Building.
- Together, these things constituted abuse of authority, trespass, negligence and intentional destruction of property.
49 MONTHS LATER
Four years after the Nicholaus demolition, the Chompupongs still own the little wedge of vacant land at the corner of State and Erie where the landmark building once stood, but the tax assessment has dropped from $315,200 to $7,500. They could not be reached for comment for this story.
The Electric City Apartments was completed and the first tenants moved in in the spring of 2019.
Additional development plans are in the works in the vicinity of State and Erie.
The city has not been reimbursed for the demolition bill but has not sued the Chompupongs, either. It will decide how to proceed after reviewing this newest lawsuit.
The loss of the Nicholaus Building is still a sore point for preservation-minded members of the community.
And for the Chompupongs.
“We’re going to continue until we get to a resolution that we think is fair,” their attorney Linda Roth said Thursday of the long-running legal wrangle.
Schenectady Corporation Counsel Andrew Koldin was able to provide limited comment Thursday.
“The city has not been served with a lawsuit filed in Supreme Court against the city by the Chompupongs and, therefore, has not reviewed any allegations in the lawsuit and cannot comment on the lawsuit,” he said via email. “With regard to the federal action, the city appreciates the hard work of its counsel, James Burns, and obviously supports [U.S. District Court Judge Mae] D’Agostino’s order dismissing the lawsuit against the city.”