CAROGA -- Gloversville-based attorney George Abdella has filed a lawsuit against the town of Caroga seeking $3.1 million in damages, or the return of Sherman's Amusement Park plus damages from the town from having improperly maintained it.
Abdella, through his company Balboaa Land Development Corp., filed a notice of claim against the town in June, the precursor to a lawsuit. On July 25 he filed the verified civil complaint in Fulton County Supreme Court, which makes it an active civil lawsuit.
Abdella alleges the town is in breach of contract for failing to live up to the terms of the 2014 donation agreement when Abdella gave to the town the 8.6-acre property located at routes 10 and 29A.
Town Supervisor James Selmser said Caroga through its attorney Gregory Dunn has filed its answer to Abedlla's lawsuit. He said the town waived its right to a 50-h hearing, a fact-finding hearing, because it wants to move forward with its legal defense.
"We want to expedite the process. We didn't need 90 days to answer. We decided to have the process start and have quicker results," Selmser said.
According to the town's "verified answer and counterclaim" to Abdella's lawsuit, the town states that the town board accepted Abdella's donation agreement when it passed Resolution 30 of 2015, but then later rescinded that resolution with Resolution 34 of 2015, in which the board accepted ownership of the property, but only if it is clear of the strings attached in the donation agreement. Dunn argues Abdella did not take legal action in 2015 and therefore has no standing to sue the town now.
The town in its counterclaim also seeks a declaratory judgment clarifying the town's ownership of Sherman's, and whether any of the stipulations of the donation agreement still apply.
No hearing date has yet been scheduled for the civil court case.
According to the lawsuit, Abdella entered into negotiations with former Caroga Supervisor Ralph Ottuso in 2014 to donate the property after Abdella told Ottuso the main providing water to the central pavilion at the park had been damaged by the Caroga Town Highway Department. The lawsuit states Ottuso assured Abdella the town would repair the line promptly, but that did not occur.
"Negotiations were entered into between the plaintiff and the town supervisor with the participation of the Director of the Fulton County Planning Board, James Mraz," reads the lawsuit. "That the plaintiff agreed to donate a portion of the realty, outbuildings and personality of the aforesaid Sherman's Amusement park on condition that the Town of Caroga would hold the property in perpetuity, never sell the aforesaid property or otherwise dispose of the aforesaid property, and that the Town of Caroga 'shall, at all times, maintain the Property to the highest of standards.'"
The lawsuit states the complex donation agreement was drafted by the Fulton County Planning Board and presented to the town and Abdella.
Since then the fate of Sherman's has become a political football in Caroga.
One faction led by Selmser would like to sell the property to a nonprofit called the Caroga Arts Collective for $50,000, about the amount of money the town has spent at the location since acquiring it in 2014. The CAC has been hosting a summer concert series at the park for the last several years. Abdella has indicated he would support the sale of Sherman's to the CAC, but not to any other entity.
Another faction, wants the town to sell or lease the property to a private sector developer in the hope of gaining a windfall for town property taxpayers.
Caroga has been unable to market the property to potential buyers because of the donation agreement from Abdella.
Proponents of a private sector developer have argued the town should seek a declaratory judgment from a court determining whether the donation agreement really gives Abdella the right to dictate to whom the town can sell the location.
All of the incumbent town officials in favor of selling Sherman's to the CAC were defeated in the Republican Party primary in June. Town Supervisor James Selmser (89 votes) incumbent board members Kent Kirch (25 votes) and Jeremy Manning (95 votes) were defeated by challengers Scott Horton (213 votes) Donald Travis (189 votes) and Richard Sturgess (239 votes). Horton has been a strong proponent of Caroga crafting a long-term lease, possibly as long as 80 years, for a private sector developer for the park.
Abdella's notice of claim in the legal action was filed with the town shortly after the Republican Party primary. The town had also scheduled a referendum for voter-approval to sell Sherman's to the CAC for Aug. 20, but has since moved the referendum to the November general election ballot. Selmser filed an independent petition, so he will face Horton again in that election, with the Sherman's referendum also in play.
Abdella's lawsuit lays out in detail all of the maintenance he believes the town promised to do, but has failed to do since he donated the property:
- Paint or otherwise protect the exteriors of the pavilion and other outbuildings.
- Supply water to the buildings and grounds.
- Fix the water line to the pavilion, which the lawsuit alleges was broken by the town.
- Repair or maintain the sheet rock within the pavilion.
- Air out the building to prevent the interior of the pavilion from deteriorating.
- Perform reasonable tests and inspection of the septic system and maintain it.
- Clear trees, bushes and other vegetation that developed on said mounds.
- Mow the grassy areas of the property.
- Make reasonable efforts to make the property open to the public.
- Maintain the beach.
- Furnish electricity to the main pavilion and regularly clean it.
- Maintain the roofs and replace dislodged shingles.
- Properly groom the landscape.
Robert Abdella, George's son and law firm partner, told the Daily Gazette in July that his father would likely drop the lawsuit if the Town Board sells the property to the CAC with George Abdella retaining the right of first refusal for any future sale of the property by the CAC. Robert Abdella has not returned phone calls seeking comment on this story since then.