2006 New York Code - Acquisition Of Property.

 
    §  40.  Acquisition  of  property.  1.  The  acquisition  of  property
  necessary for purposes of the improvement,  use,  maintenance,  control,
  management  or  repair  of  the  canal  system, shall be pursuant to the
  provisions of the eminent domain procedure law by the corporation or  by
  the commissioner of transportation at the request of the corporation.
    2.  The  commissioner of transportation or the corporation as the case
  may be, shall cause to be prepared an accurate acquisition  map  of  any
  property  which  he or it may deem necessary for purposes connected with
  the canal system or of any property in and to which he or  it  may  deem
  the  acquisition  or  exercise  of  an easement, interest or right to be
  necessary for such purposes, indicating and describing in each case  the
  particular  easement,  interest or right. On the approval of such map by
  the commissioner of transportation or the corporation as  the  case  may
  be, he or it shall acquire such property, easements, interests or rights
  pursuant to the provisions of the eminent domain procedure law.
    3.  If  the  corporation  shall determine, prior to the filing of such
  copy of the map in the  office  of  the  county  clerk  or  register  as
  aforesaid,  that  changes,  alterations  or modifications of such map as
  filed in the  main  office  of  the  corporation  should  be  made,  the
  corporation  shall,  subject  to  the  provisions  of article two of the
  eminent domain procedure law, if applicable, direct the  preparation  of
  an  amended  map,  either by preparing a new map or by making changes on
  the original tracing of  such  map,  with  a  notation  indicating  such
  changes.  On  the  approval  of  such amended map by the corporation, it
  shall be filed in the main office of the corporation in the same  manner
  as  the  original  map was filed, and the amended map shall thereupon in
  all respects and for all purposes supersede the map previously filed.
    4. If the corporation shall determine, prior to  the  filing  of  such
  copy  of  the  map  in  the  office  of  the county clerk or register as
  aforesaid, that such map should be withdrawn, the corporation shall file
  a certificate of withdrawal  in  the  offices  of  the  corporation  and
  department  of  law.  Upon the filing of such certificate of withdrawal,
  the map to which it refers shall be canceled and all  rights  thereunder
  shall cease and terminate.
    5.  The  commissioner of transportation or the corporation as the case
  may be, shall deliver to the attorney general a copy of such acquisition
  map whereupon it shall be the duty of the attorney general to advise and
  certify to the commissioner of transportation  or  the  corporation  the
  names  of  the  owners  of  the property, easements, interests or rights
  described in the said acquisition  map,  including  the  owners  of  any
  right, title or interest therein pursuant to the requirements of section
  four hundred three of the eminent domain procedure law.
    6. If, at or after the vesting of title to such property in the people
  of the state of New York as provided for in the eminent domain procedure
  law,  the  commissioner of transportation or the corporation as the case
  may be shall deem it necessary to cause the removal of an owner or other
  occupant from such property it may cause such owner or other occupant to
  be removed therefrom by  proceeding  in  accordance  with  section  four
  hundred  five of the eminent domain procedure law. The proceedings shall
  be brought in the name of the  commissioner  of  transportation  or  the
  corporation as agent of the state. If any person proceeded against shall
  contest  the  petition  by  an  answer,  the  attorney  general shall be
  notified, and he  thereafter  shall  represent  the  petitioner  in  the
  proceedings.  No execution shall issue for costs, if any awarded against
  the state, the commissioner of transportation or  the  corporation,  but
  they  shall  be part of the costs of the acquisition and be paid in like
  manner. Proceedings may be brought separately against one or more of the
  owners or other occupants of  a  property,  or  one  proceeding  may  be
  brought  against  all or several of the owners or other occupants of any
  or all property within the territorial jurisdiction of the same  justice
  or  judge;  and judgment shall be given for immediate removal of persons
  defaulting  in appearance or in answering, or withdrawing their answers,
  if any, without awaiting the trial  or  decision  of  issues  raised  by
  contestants, if any.
    7.  Upon  making  any  agreement provided for in section three hundred
  four  of  the  eminent  domain  procedure  law,  the   commissioner   of
  transportation  or  the  corporation as the case may be shall deliver to
  the comptroller such agreement and a certificate stating the amount  due
  such  owner or owners thereunder on account of such appropriation of his
  or their property and the amounts so fixed shall be paid pursuant to all
  relevant provisions of the public authorities law,  the  eminent  domain
  procedure law and the state finance law.
    8. Application for reimbursement of incidental expenses as provided in
  section  seven  hundred two of the eminent domain procedure law shall be
  made to the corporation upon forms prescribed  by  the  corporation  and
  shall be accompanied by such information and evidence as the corporation
  may  require.  Upon  approval of such application, the corporation shall
  deliver a copy thereof, to the comptroller together with  a  certificate
  stating  the  amount  due thereof, and the amount so fixed shall be paid
  out of funds available  for  the  acquisition  of  property  under  this
  section.
    9.  The  corporation  shall  establish and may from time to time amend
  rules and regulations authorizing the payment of actual  reasonable  and
  necessary  moving expenses of occupants of property acquired pursuant to
  this section; of actual direct losses of tangible personal property as a
  result of moving or discontinuing a business or farm operation, but  not
  exceeding  an  amount  equal  to the reasonable expenses that would have
  been  required  to  relocate  such  property,  as  determined   by   the
  corporation;   and   actual  reasonable  expenses  in  searching  for  a
  replacement business or farm; or  in  hardship  cases  for  the  advance
  payment  of such expenses and losses. For the purposes of making payment
  of such expenses and losses only the term "business"  means  any  lawful
  activity  conducted  primarily  for  assisting  in  the  purchase, sale,
  resale, manufacture, processing or marketing of  products,  commodities,
  personal  property  or  services  by  the erection and maintenance of an
  outdoor advertising display or displays, whether or not such display  or
  displays  are  located  on  the  premises  on  which  any  of  the above
  activities are conducted. Such rules and regulations may further  define
  the  terms  used  in this subdivision. In lieu of such actual reasonable
  and necessary moving expenses, any such displaced  owner  or  tenant  of
  residential  property  may  elect  to accept a moving expense allowance,
  plus a dislocation allowance, determined in accordance with  a  schedule
  prepared  by  the  corporation  and  made  a  part  of  such  rules  and
  regulations. In lieu of such  actual  reasonable  and  necessary  moving
  expenses,  any such displaced owner or tenant of commercial property who
  relocates or discontinues his business or farm operation  may  elect  to
  accept  a  fixed  relocation  payment  in an amount equal to the average
  annual net earnings of the business or farm operation, except that  such
  payment  shall  be  not  less than two thousand five hundred dollars nor
  more than ten thousand dollars. In the case of a business, no such fixed
  relocation payment shall  be  made  unless  the  corporation  finds  and
  determines  that  the business cannot be relocated without a substantial
  loss of its existing patronage, and that the business is not part  of  a
  commercial  enterprise having at least one other establishment, which is
  not being acquired by the state or the United States, which  is  engaged
  in  the  same or similar business. In the case of a business which is to
  be discontinued but for which the findings and determinations set  forth
  above  cannot  be  made, the corporation may prepare an estimate of what
  the actual reasonable and necessary moving expenses,  exclusive  of  any
  storage charges, would be if the business were to be relocated and enter
  into  an agreed settlement with the owner of such business for an amount
  not to exceed such estimate  in  lieu  of  such  actual  reasonable  and
  necessary   moving   expenses.   Application   for  payment  under  this
  subdivision shall be made to the corporation upon forms prescribed by it
  and shall be  accompanied  by  such  information  and  evidence  as  the
  corporation   may  require.  Upon  approval  of  such  application,  the
  corporation shall deliver a copy thereof  to  the  comptroller  together
  with  a certificate stating the amount due thereunder, and the amount so
  fixed shall be paid out  of  the  state  treasury  after  audit  by  the
  comptroller  from  moneys  appropriated  for the acquisition of property
  under this section. As used in this  subdivision  the  term  "commercial
  property"  shall  include  property  owned  by  an  individual,  family,
  partnership, corporation, association or a  nonprofit  organization  and
  includes  a  farm  operation.  As  used  in  this  subdivision  the term
  "business" means any lawful activity, except a farm operation, conducted
  primarily for the purchase, sale, lease and rental of personal and  real
  property,  and for the manufacture, processing or marketing of products,
  commodities, or any other personal property; for the sale of services to
  the public; or by a nonprofit organization.
    10. Authorization is hereby given for the reimbursement to the  person
  or  other  entity entitled thereto, as determined by the corporation, of
  an amount, separately computed and stated,  representing  the  following
  incidental  expenses  to the owner of property acquired pursuant to this
  section:
    (a) Any recording fees, transfer taxes and other similar  expenses  in
  connection  with the acquisition of the property by the state, including
  the corporation, or in connection with the transfer of the  property  to
  the state, including the corporation; and
    (b)  Any  penalty costs, incurred by the owner of property acquired by
  the state, including the corporation, for prepayment of any pre-existing
  recorded mortgage entered into in good faith encumbering such property.
    In the event that there shall be  a  final  judgment  by  a  court  of
  competent  jurisdiction  that  the commissioner of transportation or the
  corporation as the case may be, was not legally  authorized  to  acquire
  property,  or  a  portion of such property, pursuant to this section; or
  the commissioner or the corporation denies that there was any taking  of
  property,  makes  no  offer  to  settle  the value of the claim for such
  property and there shall be a final judgment by  a  court  of  competent
  jurisdiction  that  the commissioner or the corporation did in fact take
  such property; or the procedure to acquire such property is abandoned by
  the commissioner or the corporation; authorization is hereby  given  for
  the  reimbursement  to  the  person or other entity entitled thereto, as
  determined by  the  commissioner  or  the  corporation,  of  an  amount,
  separately  computed and stated, for reasonable costs, disbursements and
  expenses, including reasonable attorney, appraisal and engineering fees,
  actually incurred  by  such  person  or  other  entity  because  of  the
  acquisition procedure.
    Application  for  either  of  such reimbursements shall be made to the
  corporation upon forms prescribed by it and shall be accompanied by such
  information and evidence as the corporation may require.  Upon  approval
  of such application, the corporation shall deliver a copy thereof to the
  comptroller   together   with  a  certificate  stating  the  amount  due
  thereunder, and the amount so fixed shall be paid out of funds available
  for this purpose.
    11.  Authorization  is  hereby  given  to  the  corporation  to   make
  supplemental  relocation  payments,  separately  computed and stated, to
  displaced owners and tenants of residential property  acquired  pursuant
  to  this  section  who  are  entitled  thereto,  as  determined  by such
  corporation.  The  corporation may establish and from time to time amend
  rules  and  regulations  providing  for  such  supplemental   relocation
  payments.  Such  rules and regulations may further define the terms used
  in this subdivision. In the case of property acquired pursuant  to  this
  section  which  is improved by a dwelling actually owned and occupied by
  the  displaced  owner  for  not  less  than  one  hundred  eighty   days
  immediately  prior  to initiation of negotiations for the acquisition of
  such property, such payment to  such  owner  shall  not  exceed  fifteen
  thousand  dollars. Such payment shall be the amount, if any, which, when
  added to the acquisition payment equals the average  price,  established
  by  the  corporation  on a class, group or individual basis, required to
  obtain a comparable  replacement  dwelling  that  is  decent,  safe  and
  sanitary  to  accommodate  the displaced owner, reasonably accessible to
  public services and places of employment and available  on  the  private
  market, but in no event shall such payment exceed the difference between
  acquisition  payment  and  the  actual purchase price of the replacement
  dwelling. Such payment shall include an  amount  which  will  compensate
  such  displaced owner for any increased interest costs which such person
  is required to pay for financing the acquisition of any such  comparable
  replacement  dwelling.  Such  amount  shall be paid only if the dwelling
  acquired pursuant to this section was encumbered by a bona fide mortgage
  which was a valid lien on such dwelling for not less  than  one  hundred
  eighty  days prior to the initiation of negotiations for the acquisition
  of such dwelling. Such amount shall  be  equal  to  the  excess  in  the
  aggregate  interest  and  other debt service costs of that amount of the
  principal of the mortgage on the replacement dwelling which is equal  to
  the  unpaid  balance  of the mortgage on the acquired dwelling, over the
  remaining term of the mortgage on  the  acquired  dwelling,  reduced  to
  discounted  present  value.  The  discount  rate shall be the prevailing
  interest rate paid on  savings  deposits  by  commercial  banks  in  the
  general  area  in  which  the  replacement dwelling is located. Any such
  mortgage  interest  differential  payment  shall,  notwithstanding   the
  provisions  of  section twenty-six-b of the general construction law, be
  in lieu of and in full satisfaction of the requirements of such section.
  Such  payment  shall  include  reasonable  expenses  incurred  by   such
  displaced  owner for evidence of title, recording fees and other closing
  costs incident to the purchase of  the  replacement  dwelling,  but  not
  including  prepaid  expenses.  Such  payment  shall  be  made  only to a
  displaced owner who purchases and occupies a replacement dwelling  which
  is  decent,  safe and sanitary within one year subsequent to the date on
  which he is required to move from the dwelling acquired pursuant to this
  section or the date on which he receives from the state final payment of
  all costs of the  acquired  dwelling,  whichever  occurs  later,  except
  advance  payment  of  such  amount may be made in hardship cases. In the
  case of property  acquired  pursuant  to  this  section  from  which  an
  individual  or  family,  not  otherwise  eligible  to  receive a payment
  pursuant to the above provisions of this subdivision, is displaced  from
  any  dwelling  thereon  which has been actually and lawfully occupied by
  such individual or family for not  less  than  ninety  days  immediately
  prior  to  the  initiation  of  negotiations for the acquisition of such
  property, such payment to such individual or  family  shall  not  exceed
  four  thousand  dollars.  Such  payment  shall  be  the  amount which is
  necessary to enable such individual or family to lease  or  rent  for  a
  period not to exceed four years, a decent, safe and sanitary dwelling of
  standards adequate to accommodate such individual or family in areas not
  generally  less  desirable  in regard to public utilities and public and
  commercial  facilities  and  reasonably  accessible  to  his  place   of
  employment,  but  shall not exceed four thousand dollars, or to make the
  down payment, including reasonable expenses incurred by such  individual
  or family for evidence of title, recording fees, and other closing costs
  incident  to the purchase of the replacement dwelling, but not including
  prepaid expenses, on  the  purchase  of  a  decent,  safe  and  sanitary
  dwelling  of standards adequate to accommodate such individual or family
  in areas not generally less desirable in regard to public utilities  and
  public  and  commercial  facilities,  but shall not exceed four thousand
  dollars, except if such amount exceeds two thousand dollars, such person
  must equally match any such amount in excess of two thousand dollars, in
  making the down payment. Such payments may be made  in  installments  as
  determined  by  the  corporation.  Application  for  payment  under this
  subdivision shall be made to the corporation upon  forms  prescribed  by
  such  corporation  and  shall  be  accompanied  by  such information and
  evidence  as  the  corporation  may  require.  Upon  approval  of   such
  application,  the  corporation  shall  deliver  a  copy  thereof  to the
  comptroller,  together  with  a  certificate  stating  the  amount   due
  thereunder, and the amount so fixed shall be paid out of funds available
  for such purpose.
    12.  The  owner  of  any  property,  easements,  interests  or  rights
  appropriated, may present to the court of claims a claim for  the  value
  of  such  property appropriated and for legal damages as provided by law
  for the filing of claims with the  court  of  claims.  Payment  of  such
  awards  and judgments of the court of claims shall be made in the manner
  now prescribed by law.
    13. If the work of improvement, maintenance,  control,  management  or
  repair  of  the  canal  system causes damage to property not acquired as
  above provided, the state shall be liable therefor, but  this  provision
  shall  not  be  deemed  to  create any liability not already existing by
  statute. Claims for such damage may be adjusted by the  corporation,  if
  the  amounts  thereof  can  be  agreed upon with the persons making such
  claims, and any amount so agreed upon shall be paid as  a  part  of  the
  cost  of such improvement, maintenance, control, management or repair as
  prescribed by this section. If the amount  of  any  such  claim  is  not
  agreed  upon, such claim may be presented pursuant to the eminent domain
  procedure law to the court of claims which is hereby authorized to  hear
  such claim and determine if the amount of such claim or any part thereof
  is a legal claim against the state, and, if it so determines, to make an
  award  and  enter judgment thereon against the state, provided, however,
  that such claim is filed with the court of  claims  within  three  years
  after the accrual of such claim.
    14.   Notwithstanding   any  other  provision  of  this  section,  the
  corporation or the commissioner of transportation at the request of  the
  corporation shall have the power to acquire by grant or purchase, in the
  name  of  the  people of the state of New York, any property which he or
  the corporation deems necessary for any of the purposes provided for  in
  this  section, and payment therefor, if any, shall be made in the manner
  prescribed in this section for the  payment  of  adjusted  appropriation
  claims,  provided,  however,  that no real property shall be so acquired
  unless the title thereto shall be approved by the attorney general.
    15. The expense of the acquisition of property, including the cost  of
  making  surveys,  preparing  descriptions  and  maps  of  property to be
  acquired, and of administrative duties in connection therewith,  serving
  notices  of appropriation, publication, making appraisals and agreements
  and of searches ordered and examinations and readings  and  approval  of
  titles  made  by  the  attorney  general,  and  expenses incurred by the
  corporation or the commissioner of transportation at the request of  the
  corporation  and  attorney  general  in  proceedings  for the removal of
  owners  or occupants, shall be deemed a part of the cost of operation of
  the respective offices where  such  employees  are  engaged  or  of  the
  department  having  charge of such matters and shall be paid from moneys
  appropriated for the operation of such offices. If a  special  fund  has
  been  set  up  to  provide  for  the  acquisition of property, then such
  expense involved may be made payable from such fund.
    16. Notwithstanding the provisions of any general,  special  or  local
  law,  the  corporation  or  the  commissioner  of  transportation at the
  request of the corporation, his or its officers, agents  or  contractors
  when  engaged  on  work connected with the canal system, as described in
  subdivision one of this section, may, pursuant to the provisions of  the
  eminent domain procedure law, enter upon any property for the purpose of
  making  surveys,  test  pits,  test borings, or other investigations and
  also for temporary occupancy during construction. Claims for any  damage
  caused by such entry, work or occupation not exceeding two thousand five
  hundred  dollars  may be adjusted by agreement by the corporation or the
  commissioner of transportation at the request of  the  corporation  with
  the  owner  of  the  property  affected  as  determined  by  him or such
  corporation  by  reasonable  investigation  without  appropriating  such
  property. Upon making any such adjustment and agreement, the corporation
  or  the  commissioner of transportation shall deliver to the comptroller
  such agreement and a certificate stating the amount due such  owner  and
  the  amount  so  fixed shall be paid out of the funds available for such
  purpose.
    17. If the corporation shall determine subsequent to  the  acquisition
  of  a  temporary easement right in property and subsequent to the filing
  of a description and map of such property in the office  of  the  county
  clerk  or  register,  as  aforesaid,  that  the  purposes for which such
  easement right was acquired have been accomplished and that the use  and
  occupancy  of  said property for canal purposes are no longer necessary,
  and that, therefore,  the  term  of  such  easement  should  be  further
  limited,  or if the appropriation of such easement was for an indefinite
  period, that such period should be fixed and  determined,  or  that  the
  period  of such easement has by its terms expired, the corporation shall
  make its certificate that the use and occupancy  of  such  property  for
  canal  purposes are no longer necessary, that the property in which such
  easement right was acquired is surrendered back to the affected owner of
  said property and that such  easement  right  is  thereupon  terminated,
  released  and  extinguished.  The corporation shall cause a copy of such
  certificate to be filed in the office of the department of  state.  Upon
  the  filing of such certificate in the office of the department of state
  all rights acquired by the  state  in  such  property  shall  cease  and
  determine.  The  corporation  shall  cause  a  copy  of such certificate
  together with notice  of  the  filing  thereof  in  the  office  of  the
  department  of state to be mailed to the owner or owners of the property
  affected, as  certified  by  the  attorney  general,  if  the  place  of
  residence  of  such  owner or owners is known or can be ascertained by a
  reasonable effort. A further copy of  such  certificate  and  notice  of
  filing  shall  be  filed  in the office of the recording officer of each
  county wherein the property affected is situated. On the filing of  such
  certificate  and  notice  with such officer it shall be the duty of such
  officer to record same in the books used  for  recording  deeds  in  the
  office of such officer.
    18.   Notwithstanding   any  other  provision  of  this  section,  the
  corporation shall have the power to acquire by grant or purchase, in the
  name of the people of the state of New York, any property which it deems
  necessary for any of the purposes provided for in this section  and  may
  also  acquire  for  such  purposes  from  the  Palisades interstate park
  commission,  in  the  name  of the people of the state of New York, such
  lands and such easements, licenses, permits and other rights over  lands
  as the said commission is authorized to grant, sell, exchange or convey.
  When  the  acquisition  by  appropriation, grant or purchase of property
  deemed  necessary  for  canal  purposes  would  result  in   substantial
  consequential  damages to the owner's remaining property, due to loss of
  access, severance or control of access,  the  corporation,  for  and  on
  behalf  of  the people of the state of New York, may acquire by purchase
  or grant  all  or  any  portion  of  such  remaining  property.  Payment
  therefor, if any, shall be made in the manner prescribed in this section
  for  the  payment  of  adjusted appropriation claims, provided, however,
  that no real property shall be so  acquired  unless  the  title  thereto
  shall be approved by the attorney general.