CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/10/2021

SUPREME COURT OF THE ST ATE OF NEW YORK

COUNTY OF SCHENECTADY

--------------------------------------------------------------- X
THE PEOPLE OF THE STATE OF NEW YORK,
by LETITIA JAMES, Attorney General of the
State of New York,
Index No.
Plaintiff,

-against- SUMMONS

DA YID ELMENDORF, Date Index No. Purchased:

March 10, 2021

Defendant.
--------------------------------------------------------------- X

TO THE ABOVE-NAMED DEFENDANT:

You are hereby summoned to answer the complaint in this action and to serve a copy of
your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiffs attorney within 20 days after the service of this summons, exclusive
of the day of service ( or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York); and in case of your failure to appear
or answer, judgment will be taken against you by default for the relief demanded in the
complaint.

The basis of venue pursuant to CPLR § 503(a) is that the Defendant lives in the County
of Schenectady and a substantial part of the events or omissions giving rise to this cause of
action occurred there.

Dated: New York, New York

March 10, 202 1

Richard a yer
Special Counsel.for Hate Crimes
New York State Office of the Attorney General
28 Liberty Street, 20th Floor
New York, New York 10005
(2 12) 416-8250

This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 8
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/10/2021

To: DAVID ELMENDORF

255 Marshall Ave.
Schenectady, NY 12304

2
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 2 of 8
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/10/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SCHENECTADY

--------------------------------------------------------------- x
THE PEOPLE OF THE STATE OF NEW YORK, :
by LETITIA JAMES, Attorney General of the :
State of New York, :
: Index No.
Plaintiff, :
:
-against- : COMPLAINT
: (Injunctive Relief Requested)
DAVID ELMENDORF, :
:
:
Defendant. :
--------------------------------------------------------------- x

I. INTRODUCTION

1. The Attorney General brings this civil action against Defendant David Elmendorf

for injunctive and other relief under New York Civil Rights Law (“CRL”) §§ 79-n and 40-c and

Executive Law § 63(12).

2. Elmendorf violated various New York laws over the course of two days in June

2020 when he made multiple armed threats, including death threats using derogatory racist

language, against peaceful Black protestors and made false reports to the police regarding those

protestors. The Civil Rights Law prohibits racially motivated acts of violence or intimidation,

including targeting anyone for harm, making unjustified misrepresentations to the police, and

interfering with another person’s civil rights.

3. The Attorney General seeks to enjoin Elmendorf from engaging in these illegal

activities in the future. Such relief will protect the rights of all New Yorkers to peacefully protest

without race-based threats and harassment.

This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 3 of 8
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
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II. PARTIES AND JURISDICTION

4. Plaintiff, the People of the State of New York, represented by and through their

Attorney General, Letitia James, is a sovereign state and brings this action pursuant to CRL

§§ 79-n and 40-c and Executive Law § 63(12).

5. Defendant David Elmendorf resides in Schenectady, New York and is the former

owner of Bumpy’s Polar Freeze, a restaurant in Schenectady, New York. The restaurant is now

under new ownership and operates under a different name.

6. This Court has jurisdiction over this action pursuant to CRL § 79-n and the New

York Civil Practice Law & Rules (CPLR) § 301.

7. Venue is proper under CPLR § 503(a) because a substantial part of the events

giving rise to the claims here occurred in the County of Schenectady.

III. FACTS

8. In June 2020, local activists began protesting Elmendorf’s ice cream shop,

Bump’s Polar Freeze, after learning that Elmendorf, who is white, allegedly wrote a string of

racist text messages. The messages included racial slurs and Elmendorf admitting, “I don’t hire

black people.” In response, Black community groups coordinated several rallies outside of

Bumpy’s beginning June 28, 2020.

9. On June 30, 2020, at approximately 4 a.m., Elmendorf physically and verbally

threatened a group of Black protesters who stood peacefully on the porch of a private house near

Bumpy’s. For approximately fifteen minutes, he harangued the protestors with racist language,

calling them “n****rs,” “coons,” and “monkeys.” He threatened their lives, shouting, “If you

come over here I’m going to shoot you” and “I’ll kill all you f*****g n****rs.” Elmendorf

2
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 4 of 8
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
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threatened the protestors with a baton and told them he was going into Bumpy’s to get a gun. In

fear for their safety, the protestors retreated inside or left the scene.

10. Elmendorf then called 911, falsely reported that there were “20 armed protestors

who were threatening to shoot him,” and referred to the Black protestors as “savages” hanging

out in “Section 8 housing.” Five Schenectady police cars arrived at the scene and questioned the

witnesses who remained at the private residence. The police made no arrests.

11. That evening, during another round of protests, Elmendorf threatened a crowd of

roughly fifty peaceful protestors with a .22-caliber air rifle. Elmendorf yelled racial slurs and

threats at the group, threatening, “I’ll run you n****rs over with my truck,” “I’ll kill all you

fucking n****rs,” and “I hate you fucking n****rs.”

12. For fear of being shot, many of the protestors, who were located just off the

Bumpy’s property, fled to cover. Others stayed in the area to protect other protestors or help

them to safety.

13. After several minutes of advancing towards the protestors with his rifle,

Elmendorf lowered his weapon and gestured to the crowd, threatening, “come on you fucking

n****rs, I’ll kill all you monkeys.” Elmendorf continued to move down the street with his

weapon until he reached his vehicle and drove away from the scene.

14. After driving a short distance, a Niskayuna police offer stopped Elmendorf when

he drove through a stop sign. Police recovered a .22-caliber air rifle, a tin of .22-caliber

ammunition, and a rifle scope from Elmendorf’s vehicle.

3
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 5 of 8
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IV. CAUSE OF ACTION

COUNT I

15. Plaintiff repeats, realleges and incorporates herein by reference the allegations set

forth in paragraphs 1 through 14 of this Complaint.

16. Elmendorf intentionally selected victims for harm in whole or in substantial part

because of a belief or perception regarding their race or color.

17. Elmendorf summoned a police officer without reason to suspect a violation of the

penal law in whole or in part because of a belief or perception regarding race or color.

18. These rights are secured by CRL § 79-n, which creates a cause of action for the

Attorney General to seek an injunctive relief against a person who violates this statute.

COUNT II

19. Plaintiff repeats, realleges and incorporates herein by reference the allegations set

forth in paragraphs 1 through 14 of this Complaint.

20. Elmendorf has, because of race or color, subjected the victims to discrimination

and harassment in the exercising of their right to peacefully protest.

21. The right to be free from discrimination and harassment in the exercising of civil

rights is guaranteed by CRL § 40-c, which provides that, “no person shall, because of race,

creed, color, national origin, sex, marital status, sexual orientation or disability…be subjected to

any discrimination in his or her civil rights, or to any harassment…in the exercise thereof, by any

other person.”

V. RELIEF REQUESTED

Plaintiff State of New York respectfully requests that this Court:

1. Enter a permanent injunction enjoining the Elmendorf from:

4
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 6 of 8
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a. threatening to assault or use physical force or violence, intimidating, coercing,

or harassing any person or group of persons based on race or color or

perceived race or color;

b. threatening to assault or attempting to use physical force or violence on any

person or group of persons bias based upon their race or color or perceived

race or color;

c. possessing or brandishing an air rifle or any other deadly weapon or

dangerous instrument, as defined by the New York Penal Law, within 1,000

feet any person or group of persons peacefully protesting;

d. threatening to use physical force or violence, intimidating, coercing,

harassing, or attempting to assault, threaten, intimidate, coerce or harass any

person or causing or attempting to cause damage to or trespass upon the

property of any person because he did or might complain or testify about acts

alleged in this Complaint or acts prohibited by New York or federal law, or

did or might cooperate in any investigation concerning such acts;

e. telephoning, writing or otherwise communicating with any of the victims

present on June 30, 2020;

f. summoning a police or peace officer against any person without reason to

suspect a criminal violation in whole or in part because of their race or color

or perceived race or color;

g. encouraging or causing any other person to engage in conduct prohibited in

paragraphs (a)-(e) above or assisting any person in engaging in such conduct.

2. Declare that Elmendorf violated CRL §§ 79-n and 40-c.

5
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 7 of 8
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3. Order Elmendorf to pay a penalty ofup to $500 for each violation of CRL § 40-c

against an indi vidual victim pursuant to CRL § 40-d.

4. Grant reasonable attorneys ' fees pursuant to CRL § 79-n.

5. Grant other such relief as is just and proper.

Respectfully submitted,

'CJ!iAeyr:a;•I
~IAJAMES
Dated: March 10, 2021

Richard Sawyer
Special Counsel for Hate Crimes
Jessica Clarke
Bureau Chief, Civil Rights Bureau
Sania Khan
Assistant Attorney General
Hannah Bernard
Volunteer Assistant Attorney General
New York State Office of the Attorney General
28 Liberty Street, 20 th Floor
New York, New York 10005
(212) 416-8250

Attorneys for State ofNew York

... .

. .6
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been 8 of 8
accepted for filing by the County Clerk.
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