§ 40 — Acquisition of property

New York § 40

• Jurisdiction: New York
• Law CAL: Canal
• Art. 5: Acquisition of Property For the Canal System

Text

§ 40. Acquisition of property. 1. The acquisition of property\nnecessary for purposes of the improvement, use, maintenance, control,\nmanagement or repair of the canal system, shall be pursuant to the\nprovisions of the eminent domain procedure law by the corporation or by\nthe commissioner of transportation at the request of the corporation.\n 2. The commissioner of transportation or the corporation as the case\nmay be, shall cause to be prepared an accurate acquisition map of any\nproperty which he or it may deem necessary for purposes connected with\nthe canal system or of any property in and to which he or it may deem\nthe acquisition or exercise of an easement, interest or right to be\nnecessary for such purposes, indicating and describing in each case the\nparticular easement, interest or right. On the approval of such map by\nthe commissioner of transportation or the corporation as the case may\nbe, he or it shall acquire such property, easements, interests or rights\npursuant to the provisions of the eminent domain procedure law.\n 3. If the corporation shall determine, prior to the filing of such\ncopy of the map in the office of the county clerk or register as\naforesaid, that changes, alterations or modifications of such map as\nfiled in the main office of the corporation should be made, the\ncorporation shall, subject to the provisions of article two of the\neminent domain procedure law, if applicable, direct the preparation of\nan amended map, either by preparing a new map or by making changes on\nthe original tracing of such map, with a notation indicating such\nchanges. On the approval of such amended map by the corporation, it\nshall be filed in the main office of the corporation in the same manner\nas the original map was filed, and the amended map shall thereupon in\nall respects and for all purposes supersede the map previously filed.\n 4. If the corporation shall determine, prior to the filing of such\ncopy of the map in the office of the county clerk or register as\naforesaid, that such map should be withdrawn, the corporation shall file\na certificate of withdrawal in the offices of the corporation and\ndepartment of law. Upon the filing of such certificate of withdrawal,\nthe map to which it refers shall be canceled and all rights thereunder\nshall cease and terminate.\n 5. The commissioner of transportation or the corporation as the case\nmay be, shall deliver to the attorney general a copy of such acquisition\nmap whereupon it shall be the duty of the attorney general to advise and\ncertify to the commissioner of transportation or the corporation the\nnames of the owners of the property, easements, interests or rights\ndescribed in the said acquisition map, including the owners of any\nright, title or interest therein pursuant to the requirements of section\nfour hundred three of the eminent domain procedure law.\n 6. If, at or after the vesting of title to such property in the people\nof the state of New York as provided for in the eminent domain procedure\nlaw, the commissioner of transportation or the corporation as the case\nmay be shall deem it necessary to cause the removal of an owner or other\noccupant from such property it may cause such owner or other occupant to\nbe removed therefrom by proceeding in accordance with section four\nhundred five of the eminent domain procedure law. The proceedings shall\nbe brought in the name of the commissioner of transportation or the\ncorporation as agent of the state. If any person proceeded against shall\ncontest the petition by an answer, the attorney general shall be\nnotified, and he thereafter shall represent the petitioner in the\nproceedings. No execution shall issue for costs, if any awarded against\nthe state, the commissioner of transportation or the corporation, but\nthey shall be part of the costs of the acquisition and be paid in like\nmanner. Proceedings may be brought separately against one or more of the\nowners or other occupants of a property, or one proceeding may be\nbrought against all or several of the owners or other occupants of any\nor all property within the territorial jurisdiction of the same justice\nor judge; and judgment shall be given for immediate removal of persons\ndefaulting in appearance or in answering, or withdrawing their answers,\nif any, without awaiting the trial or decision of issues raised by\ncontestants, if any.\n 7. Upon making any agreement provided for in section three hundred\nfour of the eminent domain procedure law, the commissioner of\ntransportation or the corporation as the case may be shall deliver to\nthe comptroller such agreement and a certificate stating the amount due\nsuch owner or owners thereunder on account of such appropriation of his\nor their property and the amounts so fixed shall be paid pursuant to all\nrelevant provisions of the public authorities law, the eminent domain\nprocedure law and the state finance law.\n 8. Application for reimbursement of incidental expenses as provided in\nsection seven hundred two of the eminent domain procedure law shall be\nmade to the corporation upon forms prescribed by the corporation and\nshall be accompanied by such information and evidence as the corporation\nmay require. Upon approval of such application, the corporation shall\ndeliver a copy thereof, to the comptroller together with a certificate\nstating the amount due thereof, and the amount so fixed shall be paid\nout of funds available for the acquisition of property under this\nsection.\n 9. The corporation shall establish and may from time to time amend\nrules and regulations authorizing the payment of actual reasonable and\nnecessary moving expenses of occupants of property acquired pursuant to\nthis section; of actual direct losses of tangible personal property as a\nresult of moving or discontinuing a business or farm operation, but not\nexceeding an amount equal to the reasonable expenses that would have\nbeen required to relocate such property, as determined by the\ncorporation; and actual reasonable expenses in searching for a\nreplacement business or farm; or in hardship cases for the advance\npayment of such expenses and losses. For the purposes of making payment\nof such expenses and losses only the term "business" means any lawful\nactivity conducted primarily for assisting in the purchase, sale,\nresale, manufacture, processing or marketing of products, commodities,\npersonal property or services by the erection and maintenance of an\noutdoor advertising display or displays, whether or not such display or\ndisplays are located on the premises on which any of the above\nactivities are conducted. Such rules and regulations may further define\nthe terms used in this subdivision. In lieu of such actual reasonable\nand necessary moving expenses, any such displaced owner or tenant of\nresidential property may elect to accept a moving expense allowance,\nplus a dislocation allowance, determined in accordance with a schedule\nprepared by the corporation and made a part of such rules and\nregulations. In lieu of such actual reasonable and necessary moving\nexpenses, any such displaced owner or tenant of commercial property who\nrelocates or discontinues his business or farm operation may elect to\naccept a fixed relocation payment in an amount equal to the average\nannual net earnings of the business or farm operation, except that such\npayment shall be not less than two thousand five hundred dollars nor\nmore than ten thousand dollars. In the case of a business, no such fixed\nrelocation payment shall be made unless the corporation finds and\ndetermines that the business cannot be relocated without a substantial\nloss of its existing patronage, and that the business is not part of a\ncommercial enterprise having at least one other establishment, which is\nnot being acquired by the state or the United States, which is engaged\nin the same or similar business. In the case of a business which is to\nbe discontinued but for which the findings and determinations set forth\nabove cannot be made, the corporation may prepare an estimate of what\nthe actual reasonable and necessary moving expenses, exclusive of any\nstorage charges, would be if the business were to be relocated and enter\ninto an agreed settlement with the owner of such business for an amount\nnot to exceed such estimate in lieu of such actual reasonable and\nnecessary moving expenses. Application for payment under this\nsubdivision shall be made to the corporation upon forms prescribed by it\nand shall be accompanied by such information and evidence as the\ncorporation may require. Upon approval of such application, the\ncorporation shall deliver a copy thereof to the comptroller together\nwith a certificate stating the amount due thereunder, and the amount so\nfixed shall be paid out of the state treasury after audit by the\ncomptroller from moneys appropriated for the acquisition of property\nunder this section. As used in this subdivision the term "commercial\nproperty" shall include property owned by an individual, family,\npartnership, corporation, association or a nonprofit organization and\nincludes a farm operation. As used in this subdivision the term\n"business" means any lawful activity, except a farm operation, conducted\nprimarily for the purchase, sale, lease and rental of personal and real\nproperty, and for the manufacture, processing or marketing of products,\ncommodities, or any other personal property; for the sale of services to\nthe public; or by a nonprofit organization.\n 10. Authorization is hereby given for the reimbursement to the person\nor other entity entitled thereto, as determined by the corporation, of\nan amount, separately computed and stated, representing the following\nincidental expenses to the owner of property acquired pursuant to this\nsection:\n (a) Any recording fees, transfer taxes and other similar expenses in\nconnection with the acquisition of the property by the state, including\nthe corporation, or in connection with the transfer of the property to\nthe state, including the corporation; and\n (b) Any penalty costs, incurred by the owner of property acquired by\nthe state, including the corporation, for prepayment of any pre-existing\nrecorded mortgage entered into in good faith encumbering such property.\n In the event that there shall be a final judgment by a court of\ncompetent jurisdiction that the commissioner of transportation or the\ncorporation as the case may be, was not legally authorized to acquire\nproperty, or a portion of such property, pursuant to this section; or\nthe commissioner or the corporation denies that there was any taking of\nproperty, makes no offer to settle the value of the claim for such\nproperty and there shall be a final judgment by a court of competent\njurisdiction that the commissioner or the corporation did in fact take\nsuch property; or the procedure to acquire such property is abandoned by\nthe commissioner or the corporation; authorization is hereby given for\nthe reimbursement to the person or other entity entitled thereto, as\ndetermined by the commissioner or the corporation, of an amount,\nseparately computed and stated, for reasonable costs, disbursements and\nexpenses, including reasonable attorney, appraisal and engineering fees,\nactually incurred by such person or other entity because of the\nacquisition procedure.\n Application for either of such reimbursements shall be made to the\ncorporation upon forms prescribed by it and shall be accompanied by such\ninformation and evidence as the corporation may require. Upon approval\nof such application, the corporation shall deliver a copy thereof to the\ncomptroller together with a certificate stating the amount due\nthereunder, and the amount so fixed shall be paid out of funds available\nfor this purpose.\n 11. Authorization is hereby given to the corporation to make\nsupplemental relocation payments, separately computed and stated, to\ndisplaced owners and tenants of residential property acquired pursuant\nto this section who are entitled thereto, as determined by such\ncorporation. The corporation may establish and from time to time amend\nrules and regulations providing for such supplemental relocation\npayments. Such rules and regulations may further define the terms used\nin this subdivision. In the case of property acquired pursuant to this\nsection which is improved by a dwelling actually owned and occupied by\nthe displaced owner for not less than one hundred eighty days\nimmediately prior to initiation of negotiations for the acquisition of\nsuch property, such payment to such owner shall not exceed fifteen\nthousand dollars. Such payment shall be the amount, if any, which, when\nadded to the acquisition payment equals the average price, established\nby the corporation on a class, group or individual basis, required to\nobtain a comparable replacement dwelling that is decent, safe and\nsanitary to accommodate the displaced owner, reasonably accessible to\npublic services and places of employment and available on the private\nmarket, but in no event shall such payment exceed the difference between\nacquisition payment and the actual purchase price of the replacement\ndwelling. Such payment shall include an amount which will compensate\nsuch displaced owner for any increased interest costs which such person\nis required to pay for financing the acquisition of any such comparable\nreplacement dwelling. Such amount shall be paid only if the dwelling\nacquired pursuant to this section was encumbered by a bona fide mortgage\nwhich was a valid lien on such dwelling for not less than one hundred\neighty days prior to the initiation of negotiations for the acquisition\nof such dwelling. Such amount shall be equal to the excess in the\naggregate interest and other debt service costs of that amount of the\nprincipal of the mortgage on the replacement dwelling which is equal to\nthe unpaid balance of the mortgage on the acquired dwelling, over the\nremaining term of the mortgage on the acquired dwelling, reduced to\ndiscounted present value. The discount rate shall be the prevailing\ninterest rate paid on savings deposits by commercial banks in the\ngeneral area in which the replacement dwelling is located. Any such\nmortgage interest differential payment shall, notwithstanding the\nprovisions of section twenty-six-b of the general construction law, be\nin lieu of and in full satisfaction of the requirements of such section.\nSuch payment shall include reasonable expenses incurred by such\ndisplaced owner for evidence of title, recording fees and other closing\ncosts incident to the purchase of the replacement dwelling, but not\nincluding prepaid expenses. Such payment shall be made only to a\ndisplaced owner who purchases and occupies a replacement dwelling which\nis decent, safe and sanitary within one year subsequent to the date on\nwhich he is required to move from the dwelling acquired pursuant to this\nsection or the date on which he receives from the state final payment of\nall costs of the acquired dwelling, whichever occurs later, except\nadvance payment of such amount may be made in hardship cases. In the\ncase of property acquired pursuant to this section from which an\nindividual or family, not otherwise eligible to receive a payment\npursuant to the above provisions of this subdivision, is displaced from\nany dwelling thereon which has been actually and lawfully occupied by\nsuch individual or family for not less than ninety days immediately\nprior to the initiation of negotiations for the acquisition of such\nproperty, such payment to such individual or family shall not exceed\nfour thousand dollars. Such payment shall be the amount which is\nnecessary to enable such individual or family to lease or rent for a\nperiod not to exceed four years, a decent, safe and sanitary dwelling of\nstandards adequate to accommodate such individual or family in areas not\ngenerally less desirable in regard to public utilities and public and\ncommercial facilities and reasonably accessible to his place of\nemployment, but shall not exceed four thousand dollars, or to make the\ndown payment, including reasonable expenses incurred by such individual\nor family for evidence of title, recording fees, and other closing costs\nincident to the purchase of the replacement dwelling, but not including\nprepaid expenses, on the purchase of a decent, safe and sanitary\ndwelling of standards adequate to accommodate such individual or family\nin areas not generally less desirable in regard to public utilities and\npublic and commercial facilities, but shall not exceed four thousand\ndollars, except if such amount exceeds two thousand dollars, such person\nmust equally match any such amount in excess of two thousand dollars, in\nmaking the down payment. Such payments may be made in installments as\ndetermined by the corporation. Application for payment under this\nsubdivision shall be made to the corporation upon forms prescribed by\nsuch corporation and shall be accompanied by such information and\nevidence as the corporation may require. Upon approval of such\napplication, the corporation shall deliver a copy thereof to the\ncomptroller, together with a certificate stating the amount due\nthereunder, and the amount so fixed shall be paid out of funds available\nfor such purpose.\n 12. The owner of any property, easements, interests or rights\nappropriated, may present to the court of claims a claim for the value\nof such property appropriated and for legal damages as provided by law\nfor the filing of claims with the court of claims. Payment of such\nawards and judgments of the court of claims shall be made in the manner\nnow prescribed by law.\n 13. If the work of improvement, maintenance, control, management or\nrepair of the canal system causes damage to property not acquired as\nabove provided, the state shall be liable therefor, but this provision\nshall not be deemed to create any liability not already existing by\nstatute. Claims for such damage may be adjusted by the corporation, if\nthe amounts thereof can be agreed upon with the persons making such\nclaims, and any amount so agreed upon shall be paid as a part of the\ncost of such improvement, maintenance, control, management or repair as\nprescribed by this section. If the amount of any such claim is not\nagreed upon, such claim may be presented pursuant to the eminent domain\nprocedure law to the court of claims which is hereby authorized to hear\nsuch claim and determine if the amount of such claim or any part thereof\nis a legal claim against the state, and, if it so determines, to make an\naward and enter judgment thereon against the state, provided, however,\nthat such claim is filed with the court of claims within three years\nafter the accrual of such claim.\n 14. Notwithstanding any other provision of this section, the\ncorporation or the commissioner of transportation at the request of the\ncorporation shall have the power to acquire by grant or purchase, in the\nname of the people of the state of New York, any property which he or\nthe corporation deems necessary for any of the purposes provided for in\nthis section, and payment therefor, if any, shall be made in the manner\nprescribed in this section for the payment of adjusted appropriation\nclaims, provided, however, that no real property shall be so acquired\nunless the title thereto shall be approved by the attorney general.\n 15. The expense of the acquisition of property, including the cost of\nmaking surveys, preparing descriptions and maps of property to be\nacquired, and of administrative duties in connection therewith, serving\nnotices of appropriation, publication, making appraisals and agreements\nand of searches ordered and examinations and readings and approval of\ntitles made by the attorney general, and expenses incurred by the\ncorporation or the commissioner of transportation at the request of the\ncorporation and attorney general in proceedings for the removal of\nowners or occupants, shall be deemed a part of the cost of operation of\nthe respective offices where such employees are engaged or of the\ndepartment having charge of such matters and shall be paid from moneys\nappropriated for the operation of such offices. If a special fund has\nbeen set up to provide for the acquisition of property, then such\nexpense involved may be made payable from such fund.\n 16. Notwithstanding the provisions of any general, special or local\nlaw, the corporation or the commissioner of transportation at the\nrequest of the corporation, his or its officers, agents or contractors\nwhen engaged on work connected with the canal system, as described in\nsubdivision one of this section, may, pursuant to the provisions of the\neminent domain procedure law, enter upon any property for the purpose of\nmaking surveys, test pits, test borings, or other investigations and\nalso for temporary occupancy during construction. Claims for any damage\ncaused by such entry, work or occupation not exceeding two thousand five\nhundred dollars may be adjusted by agreement by the corporation or the\ncommissioner of transportation at the request of the corporation with\nthe owner of the property affected as determined by him or such\ncorporation by reasonable investigation without appropriating such\nproperty. Upon making any such adjustment and agreement, the corporation\nor the commissioner of transportation shall deliver to the comptroller\nsuch agreement and a certificate stating the amount due such owner and\nthe amount so fixed shall be paid out of the funds available for such\npurpose.\n 17. If the corporation shall determine subsequent to the acquisition\nof a temporary easement right in property and subsequent to the filing\nof a description and map of such property in the office of the county\nclerk or register, as aforesaid, that the purposes for which such\neasement right was acquired have been accomplished and that the use and\noccupancy of said property for canal purposes are no longer necessary,\nand that, therefore, the term of such easement should be further\nlimited, or if the appropriation of such easement was for an indefinite\nperiod, that such period should be fixed and determined, or that the\nperiod of such easement has by its terms expired, the corporation shall\nmake its certificate that the use and occupancy of such property for\ncanal purposes are no longer necessary, that the property in which such\neasement right was acquired is surrendered back to the affected owner of\nsaid property and that such easement right is thereupon terminated,\nreleased and extinguished. The corporation shall cause a copy of such\ncertificate to be filed in the office of the department of state. Upon\nthe filing of such certificate in the office of the department of state\nall rights acquired by the state in such property shall cease and\ndetermine. The corporation shall cause a copy of such certificate\ntogether with notice of the filing thereof in the office of the\ndepartment of state to be mailed to the owner or owners of the property\naffected, as certified by the attorney general, if the place of\nresidence of such owner or owners is known or can be ascertained by a\nreasonable effort. A further copy of such certificate and notice of\nfiling shall be filed in the office of the recording officer of each\ncounty wherein the property affected is situated. On the filing of such\ncertificate and notice with such officer it shall be the duty of such\nofficer to record same in the books used for recording deeds in the\noffice of such officer.\n 18. Notwithstanding any other provision of this section, the\ncorporation shall have the power to acquire by grant or purchase, in the\nname of the people of the state of New York, any property which it deems\nnecessary for any of the purposes provided for in this section and may\nalso acquire for such purposes from the Palisades interstate park\ncommission, in the name of the people of the state of New York, such\nlands and such easements, licenses, permits and other rights over lands\nas the said commission is authorized to grant, sell, exchange or convey.\nWhen the acquisition by appropriation, grant or purchase of property\ndeemed necessary for canal purposes would result in substantial\nconsequential damages to the owner's remaining property, due to loss of\naccess, severance or control of access, the corporation, for and on\nbehalf of the people of the state of New York, may acquire by purchase\nor grant all or any portion of such remaining property. Payment\ntherefor, if any, shall be made in the manner prescribed in this section\nfor the payment of adjusted appropriation claims, provided, however,\nthat no real property shall be so acquired unless the title thereto\nshall be approved by the attorney general.\n