NORTH TONAWANDA – The Oliver Street convenience store owner accused of setting fire to his business to collect insurance money is taking the city back to court.
The suit filed in U.S. District Court earlier this month by Muwafek S. “Moe” Rizek accuses the city of discriminating against him because of his Arab ancestry and also accuses North Tonawanda Detective Robert Kalota of stealing evidence from the burned-out store.
“I will 100 percent deny that any of that happened,” Police Chief Randy Szukala said. “Those are such far-fetched accusations that I can’t comment on them in a newspaper.”
The new case, which also includes an allegation of slander, comes a year after a State Supreme Court jury, deliberating for 15 minutes after a two-week trial, rejected the assertion of Rizek’s insurer, Finger Lakes Fire & Casualty Co., that the fire in Rizek’s store was an arson.
The store was insured for $525,000, but Finger Lakes refused to pay, charging that Rizek, now 27, torched his own store May 15, 2009, because he was in financial trouble.
Rizek’s attorney, Kevin T. Stocker, brought expert fire investigators to court who convinced the jury that Mark’s Food Market II, 290 Oliver St., was gutted by an electrical fire.
The defense team of veteran East Aurora fire investigators Craig L. Thrasher and Ralph A. Woodard defeated Kalota and Vincent Pupo, former head of the Erie County Sheriff’s Office fire investigation team, who told the jury the fire was arson.
The Niagara County District Attorney’s Office was poised to file arson charges against Rizek, but the jury verdict put an end to those plans.
“That’s now closed,” Assistant District Attorney Brian D. Seaman confirmed last week.
Stocker said he never heard anything from the District Attorney’s Office about that.
He said that former Assistant District Attorney Timothy R. Lundquist tried to get Rizek to plead guilty to arson before being indicted.
Stocker said Lundquist, who was later fired after his arrest in a domestic violence case in which he eventually pleaded guilty, called him “stupid” and “incompetent” for refusing the plea.
Pupo and his employer, Francis J. Conway Investigation of Clarence, now known as James O’Neil Investigations, are defendants in the federal lawsuit, along with Flex Investigations of East Amherst, which also worked against Rizek.
In January, Rizek settled with Finger Lakes for $500,000. He explained last week, “I took the settlement because [fighting it] was going to be a long and painful process that would probably lead to not much more from the insurance company.”
But it turned out that wasn’t enough to rebuild the business. “After expert fees and attorney fees, I got less than half that,” Rizek said.
He said he pocketed a little over $200,000, but the cost of rebuilding and stocking the store has exceeded that. He said he’s in debt again as he struggles to reopen the store, which he said could happen by the end of this year.
But Rizek said his federal lawsuit is not a case of revenge, nor of trying to win money to clear his debts.
“This is not me trying to get them back,” he said. “Not everything is just money. We need money to get rolling, but someone needs to be held accountable.”
“He still feels he’s being a target,” Stocker said. “He feels he’s being discriminated against, and he needs to send the message that this won’t be tolerated.”
The lawsuit does not name a dollar amount of damages being sought. Stocker said that would be up to a jury.
Rizek, a U.S. citizen born in Palestine, said he’s had a couple of run-ins with North Tonawanda police since the State Supreme Court verdict in his favor, but he wouldn’t discuss them.
Stocker said one of them involved a policeman asking Rizek for his ID at the North Tonawanda post office.
“There are people up there who feel that the Police Department doesn’t like them because of the kind of people they are,” Stocker said.
“Those allegations, there’s no evidence to support them,” City Attorney Shawn P. Nickerson said.
The lawsuit accuses Kalota of failing to interview significant witnesses in the fire investigation. It says he “failed to collect evidence, misinterpreted evidence, destroyed evidence and/or contaminated the fire scene.”
If those acts weren’t negligence, the suit alleges, they were “intentional misconduct.”
Specifically, the lawsuit charges that Kalota “unlawfully broke into Mr. Rizek’s business to steal electrical evidence.”
Stocker said the defense experts located a wire in the rubble that they felt showed that an electrical malfunction triggered the fire. He said they marked the spot with a shovel, meaning to come back later to examine it further.
“In the meantime, someone broke into the building. There was a military-style boot print right next to the shovel, and the wire was missing,” Stocker said. “They didn’t take anything else. … I have my own suspicions who did that. I’ll have to prove it, and it’ll be another jury [trial].”
“The city certainly denies those allegations. Those allegations are unfounded,” Nickerson said.
The city attorney said he is pleased with the progress on Rizek’s store.
“I drive by it every day,” he said. “The building looks great. All the code violations have been abated. … Before that, we had a blighted, burned-out building.”
The city had agreed to refund a $2,500 building inspection fee, but Rizek said that hasn’t happened.
Nickerson said that’s because Rizek hasn’t signed a form releasing the city from liability.
Rizek said that because the investigation of the fire’s cause is technically still open.
“My credit is ruined,” he said. “I went to buy a car, and my interest rate is sky-high.”
Stocker said the reopening of the store is “days away. He’s worked very hard on it. He did a lot of the work himself.”
Rizek said he had little choice. “I can’t even get a company to deliver stuff for the store on any kind of credit. [Everything] I get, I have to pay cash,” he said. “Why should I have to suffer because I had a fire that I had absolutely nothing to do with? … It’s all because of the city, the Police Department and Detective Kalota.”