Court fight continues over demolition of landmark Nicholaus Building

FILE PHOTOThe Nicholaus Building is shown April 4, 2016, shortly after it became unstable and was evacuated.
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FILE PHOTO
The Nicholaus Building is shown April 4, 2016, shortly after it became unstable and was evacuated.

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.

HISTORY

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.

LITIGATION

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.”

Categories: Business, News

2 Comments

Yakcracker

Gee how surprising. A government entity abusing citizens and costing them huge amounts of money. I can’t believe in the state of NY such things could happen! I wonder who the owners of that building crossed? This state is sickening, the corruption is beyond belief in every facet of government. I guarantee you someone in the circle of cronies made a dumptruck load of cash from screwing these people. Oh well, American Government business as usual. Nothing to see here.

David Bianchi

(If Only I could Some How Afford/Proper Representation, Justice..) Class Action, Maybe??

There is Also the Problem of One’s that Get Elected to Higher Office in which they think, They Are Above The Law!
Having the Legal Bullying Powers of Doing As They Wish! I Wouldn’t Have Believed It Without Witnessing It First Hand!
Therefore, I Will Repeat Again..
Corruption in Schenectady? No Way!
Barrett Village, Eminent Domain! On Vacant Lots with No Buildings on them with the Mayor Calling Them Blight! (In which I kept the Vacant Lots Clean and mowed..)
Along with Taxes Payed in Full on the Vacant Lots Illegally Ordered Sent Back!
In Which the City Couldn’t Foreclose on for Unpaid Taxes!
All, After Initial Threats by City Lawyers To Sell the Property Cheap! or They Will Just Go Through the City and Take it!
For a Row of (15) Town Houses Selling for $260,000.00 each!
Schenectady Gate!!
Lord, Please, That’s All I ask is Let Me Have My Day in Court to Expose These Bunch of Corrupt Politicians that Run this City!!
I Understand that Chalking Up or Destruction of Property is a Crime!
What about Property Owning Rights ???

August 14, 2018

To Whom It May Concern

Please be advised that I have represented David Bianchi in numerous matters concerning properties in the City of Schenectady.

A number of years ago I was approached by an attorney who asked if Mr. Bianchi was willing to sell a property on Barrett Street, as a development project was planed I responded with his asking price, which admittedly was high taking into account the planed use of the property, the attorney replied “That’s ok, we’ll just have the City take it.” Subsequently, an abandonment proceeding was commenced by the City of Schenectady, which the property was found to be abandoned despite the fact Mr. Bianchi continually used the property for storage and building inspector admitted he had never been inside the property.
Exhibits have subsequently misplaced by the Court.

Later, Mr. Bianchi attempted to pay back taxes on another property which was in the name of another family member. After submitting the payment in full to American Tax Funding. ATF returned the payment and indicated that they had been directed by the City of Schenectady to return same as Mr. Bianchi was not the proper payer. This was done despite the fact that the City frequently takes payments from other entities for tax payments. It was clear that the City simply wished to seize the property for back taxes, and even the representative of ATF stated they had never seen that situation before.

Mr. Bianchi owned another property that was foreclosed on and a judgment of foreclosure entered.
Subsequently, the mortgagee ex parte requested that the judgment be vacated, a fire later occurred at an adjoining property necessitating the demolition of an structure on Mr. Bianchi’s property. The City later sought to recover the significant demolition cost from Mr. Bianchi, despite the fact he had been divested of to the by the foreclosure proceeding, and knew nothing of what happened subsquently.

It appears that Mr. Bianchi’s Civil rights have been violated by the City of Schenectady on a number of occasions. It is unclear why he became a target of the City, but he clearly was.

Sincerely yours,
Glen W. Brownell

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