SCHENECTADY – The white former owner of Bumpy’s Polar Freeze on State Street, who “terrorized” peaceful Black protesters and then called police to falsely accuse them of threatening him with harm, was ordered to pay nine victims $500 each, the maximum punishment per victim allowable by law.
State Attorney General Letitia James said Wednesday she won a lawsuit filed in March against David Elmendorf, the former proprietor of the since-closed ice cream shop.
But Elmendorf’s lawyer, James Mermigas, said his client was never served notice of the AG’s action, and he promised a countersuit.
Black Lives Matter protesters and members of the Black community showed up outside the former Bumpy’s Polar Freeze in June 2020 during the course of two days to express outrage at Elmendorf’s alleged social media posts that used racial epithets and asserted his refusal to hire Black people.
Elmendorf, in turn, went into a rage, threatening to shoot and “kill all of you.” He also called protesters monkeys and the n-word.
James said Elmendorf terrorized the peaceful protesters while brandishing a .22 caliber air rifle and a baton.
Elmendorf then called police to falsely report that Black people in the group had threatened to shoot him.
Elmendorf claimed to police that the protesters were armed, when, in fact, no protesters carried weapons, James said.
James sued Elmendorf on the heels of the infamous “Central Park Karen” incident in March 2020 in which a white woman, Amy Cooper, called police and falsely accused a Black bird watcher who had recorded the interaction.
Cooper falsely accused the Black man of threatening to harm her.
After that incident, the state passed a new law that gave James’ office authority to prosecute false, race-based police reports.
The case against Elmendorf was the first lawsuit brought by James’ Hate Crimes and Bias Prevention Unit.
As part of Justice Michael Cuevas’ judgment against Elmendorf, the former Schenectady business owner is permanently enjoined from making further threats to intimidate, coerce, harass, or use physical violence against any persons or group of people because of their race, James said.
Elmendorf is also forbidden from possessing or brandishing a deadly weapon within 1,000 feet of any peaceful protest, from communicating with any of the victims from the incident, and from creating false reports with the police based on a person’s skin color.
“There is zero tolerance for harassment, intimidation, or violence of any kind against anyone in New York,” James said. “As this nation continues to be plagued by division and hate, this decision sends a critical and clear message that those who perpetuate racism and discrimination, including filing false, race-based police reports, will be held to the fullest extent of the law. This is an important step forward, but our work isn’t over — we will continue to work tirelessly to ensure that every New Yorker feels safe and protected.”
Mermigis said Elmendorf didn’t wage a defense because he wasn’t properly notified of any action made by the AG.
“We’re going to look to overturn it because my client was not properly served, and we didn’t put a defense in,” Mermigis said. “All these allegations are completely false and overreaching, and we may file a countersuit against the state and the county for defamation because they’ve ruined my client’s good name.”
Mermigis said his client now works as a long-distance trucker.
“He was forced to lose his business through no fault of his own,” Mermigis said, adding he would never represent a racist.
“This guy doesn’t have a racist bone in his body and he is the victim,” the lawyer said. “He’s the one who lost his business, a business where he was earning a significant revenue, because of a false claim.”
Mermigis said there’s no proof his client wrote the social media posts in question.
“Anybody can go on Facebook, Instagram, and cut and paste, and allege that this person said this and that,” Mermigis said. “We were never offered any proof that, that was actually his account, or there was never any verification that those statements came from his account.”
Mermigis said he will now look into the origin of the posts.
“I’ll do a full-blown investigation, see that this did not come from my client’s account, and then I’ll sue the (***) out of the state and the county for doing this to my client.”
Schenectady County Attorney Christopher H. Gardner thanked James and her staff for their professionalism and dedication.
“This decision demonstrates that government, at all levels, is committed to seeking justice for all members of our community,” Gardner said. “When I requested the Attorney General’s assistance to help address this difficult situation, she did so immediately and without hesitation.”
Mayor Gary McCarthy said the outcome sent a clear message that racism and hatred will not be tolerated in the city.
Rabbi Matt Cutler, a member of Schenectady Clergy Against Hate, applauded James for asserting racism and discrimination have no place in the community and Justice Cuevas for levying the maximum penalty per victim as permitted by law.
“We as people of faith believe that it is our moral imperative to eradicate hatred wherever it exists,” Cutler said. “We will use whatever tools we have before us — education, criminal prosecution, civil liabilities claims, the media, the pulpit, peaceful gatherings, peer-to-peer advocacy, etcetera. There is no place for hate in Schenectady County and we stand together as a community to pursue justice.”
Bumpy’s Polar Freeze was sold to Ashley and Gabe Viscariello, who opened Stella’s Creamery & Cakes in the same location earlier this year.