CAROGA -- The Town Board on Friday voted to authorize Deputy Supervisor James Long to sign a settlement agreement with George Abdella that returns ownership of the former Sherman's Amusement Park to him. The agreement would settle a lawsuit Abdella filed against the town.
The board during a special meeting voted 3-1 in favor of the settlement which, if approved by state Supreme Court Judge Richard Kupferman, will effectively end an almost five-year battle over the town's ownership of the 8.6-acre property located at routes 10 and 29A.
Sherman's, located on West Caroga Lake, is considered by many to be both the most valuable property in Caroga and the sentimental heart of the town, having provided many in the region memories of the classic 1921 lakeside amusement park, with its vintage carousel ride, Ferris wheel, dance hall, bumper cars and soft ice cream.
Abdella, who operates a Gloversville-based law firm with his son Robert Abdella, gave the property to the town at the end of 2014 as part of a complex donation agreement, under the auspices of his Balboaa Land Development Corp. The town was to use the property as a public amenity and the agreement prohibited the town from selling it to a private developer.
Prior to 2014, Abdella had been the final private sector owner of the property, having operated it as a bar and summer fireworks venue for several years before shutting it down.
On Aug. 18 Abdella filled a lawsuit demanding the return of the property, plus $3.1 million in damages, from the town for failing to live up to the maintenance requirements of the donation agreement.
Abdella's donation of the property split the public politically and has played a major role in the election of its Town Board and the supervisors since the gift was accepted by former Supervisor Ralph Ottuso on Dec. 29, 2014 and then ratified by the Town Board on March 11, 2015.
A referendum on whether the town should sell the property to the nonprofit Caroga Arts Collective for $50,000 is scheduled to appear on the Nov. 5 ballot. Abdella supported the sale to the CAC, but only to the CAC and no other entity.
Robert Abdella on Friday said his father plans to donate the property to the CAC as soon as a judge approves the settlement agreement.
The Daily Gazette obtained copies of the settlement agreement and the resolution authorizing Long to sign it Friday. Town Board member Jeremy Manning indicated the board will attempt to seek legal punishment for the person who supplied the copies to The Gazette as an anonymous source.
"My comment is The Daily Gazette should not be publishing any language from the legal agreement because that's a confidential document that was not to be shared with members of the public at this time," he said.
The settlement agreement stipulates to many of the claims made in Abdella's lawsuit, and Abdella agreed to waive any claim to damages "now or in the future."
These are some of the highlights of the agreement:
• The town of Caroga acknowledged it has had difficulty maintaining the property as stipulated in the donation agreement and it will be difficult, if not impossible, for the town to maintain the property as agreed upon in the future.
• That both parties agree they made the mutual mistake when the agreement was ratified in believing the town was "capable and willing to care for and maintain the property and otherwise be bound by all of the conditions" in the agreement.
• The town of Caroga is "relieved of the financial obligations and responsibilities necessary to fulfill all of the conditions of the original agreement."
• Each party agrees to discontinue all causes of action and counterclaims related to the matter.
Long, Manning and Town Board member Kent Kirch voted in favor of the settlement and Town Board member Dr. John "Jack" Glenn voted against it.
Glenn has been among the most consistent opponents of the town selling the property to the CAC. He, along with former town Supervisor Beth Morris and others, favored the town seeking a judgment ruling on whether Abdella's prohibitions against selling the property to a private developer were legal.
Long, Kirch, Manning and current town Supervisor James Selmser have supported the plan to sell to the CAC, which has hosted summer music concerts at the venue for the last several years. Abdella had approved of the sale to the nonprofit.
During the June Republican Party primary all of the incumbent town officials in favor of the selling to the CAC, including Selmser, were roundly defeated by candidates against the CAC acquiring ownership of the property. Selmser will still appear on the November ballot as an independent.
Selmser was not present for the vote and is not expected to return in time to sign the settlement after Kupferman rules on it, thus requiring the board to empower Long to sign it instead.
The vote on the settlement agreement followed oral arguments on Abdella's lawsuit heard by Kupferman Friday morning. Abdella was represented by Joseph Sise, the Abdellas' new law firm partner, and the town was represented by attorney Greg Dunn.
One of the key issues in the lawsuit was whether the town had legally rescinded Abdella's donation agreement on May 7, 2015, when the Town Board passed a resolution that accepted the property as an unconditional gift and sought to negate its earlier acceptance of the donation agreement.
Part of the legal dispute centers on whether the property was conveyed before the Town Board had approved the donation agreement. Ottuso signed the agreement Dec. 29, 2014 and filed the deed to the property with the Fulton County Clerk's Office on Dec. 31, 2014. The donation agreement was ratified by the Town Board on March 11, 2015, then rescinded May 7 after the board received advice from attorney Sal Ferlazzo.
Sise, who served for years as a Supreme Court Judge in Montgomery County, said questions asked by Kupferman during legal arguments led both parties to believe he would likely rule in Abdella's favor if they didn't settle the lawsuit.
"Sometimes you can get a feel from a judge's questions problems a court may be having with a legal argument," Sise said. "One of the things the judge was asking the town attorney was the justification, or the legal argument, that would have any merit ... for the town to be able to just rework the conditions that George Abdella had worked out with the town in giving this beautiful, highly valuable piece of land."
Sise and Dunn agreed to a "stipulation and agreement" document Friday morning; signing the agreement was approved by the Caroga Town Board after the court hearing.
Also in attendance during legal arguments were John Livingston and Scott Horton, the Republican Party candidate for Caroga supervisor. Both opposed the sale to the CAC and holding a referendum to decide the matter.
Livingston on Oct. 15 filed a lawsuit seeking to either have the referendum removed from the November ballot or to invalidate its results. He also sought between $5,000 and $6,000 in attorneys fees he has incurred by hiring Maynard, O’Connor, Smith & Catalinotto of Albany to file his lawsuit against the town, its board members and its clerk, Linda Gilbert.
Horton on Friday said Kupferman ruled Livingston's lawsuit to now be mute, given the pending settlement agreement which will transfer ownership back to Abdella.
Horton said Kupferman also ordered the results of the Nov. 5 ballot referendum to be sealed.
"Nobody asked for that, but the judge thought in all fairness that if John Livingston and his group wanted to continue its legal action under a different set of circumstances, he didn't want to prejudice any further legal action based on a political vote," Horton said. "He said the ballots have already been printed and there's going to be votes and he's going to seal the results of those votes, so any future legal action won't be tainted one way or another, which I thought was brilliant."
Livingston argued in his lawsuit that Selmser, Long, Manning and Kirch failed in their due diligence to seek the highest possible price for Sherman's. He said Friday he considers the matter far from over.
"I don't consider today a loss at all," he said.
Livingston said he will be filing a new lawsuit challenging the special meeting held Friday to vote on the settlement agreement.
"Illegal meeting equals illegal resolution," he said.
Long had no comment about a future lawsuit from Livingston, but commented on his first action.
"Today the judge fully dismissed the Livingston case. The town also agreed to a settlement agreement with Balboaa, though the terms of that agreement are still awaiting judicial review and are confidential at this time," he stated in a text message. \
Sise said he anticipates Kupferman will rule on the settlement agreement Monday morning.
Robert Abdella said his father will donate the property to the CAC as soon as possible. He said the donation will not be a tax deductible gift.
Livingston had criticized George Abdella's donation agreement for valuing the property at $2.2 million, allowing him a large tax deduction.
"The purpose is to keep the property open, and make it available for the citizens of the town of Caroga, and there was certainly a tax benefit when we donated it to the town of Caroga, but we're not looking for a second tax benefit," Robert Abdella said.