§ 304 — Advance payment; actions thereafter

New York § 304

• Jurisdiction: New York
• Law EDP: Eminent Domain Procedure
• Art. 3: Offer and Negotiations

Text

§ 304. Advance payment; actions thereafter. (A) The written offer, or\nany adjustment thereof made prior to acceptance, shall state that:\n (1) the offer constitutes the amount of the condemnor's highest\napproved appraisal of the just compensation for the property, and that\npayment will be made together with appropriate interest;\n (2) a condemnee may accept the offer as payment in full; or\n (3) a condemnee may reject the offer as payment in full and instead\nelect to accept such offer as an advance payment, and that such election\nshall in no way prejudice the right of a condemnee to claim additional\ncompensation; however, the failure of the condemnee to file a claim\nwithin the time of filing claims as provided in subdivision (A) of\nsection five hundred three of this law shall be deemed an acceptance of\nthe amount paid as full settlement of such claim;\n (4) upon the acceptance of the written or an adjusted offer, the\ncondemnor shall enter into an agreement or stipulation with the\ncondemnee providing for payment pursuant to such agreement, either as\npayment in full or as an advance payment. The right of the condemnee to\nthe advance payment shall not be conditioned on the waiver of any other\nright.\n (B) The offer shall be deemed rejected in the event that a condemnee\nwithin ninety days of the offer fails or refuses to notify the condemnor\nin writing that the advance payment is accepted.\n (C) In the event a condemnee shall reject the offer or the offer shall\nbe deemed rejected pursuant to subdivision (B) or a condemnee\nunreasonably fails to provide the condemnor with all papers reasonably\nnecessary to effect a valid transfer of title as acquired, within ninety\ndays of receipt, the condemnor's obligation to pay interest on the\namount of the offer shall be suspended until such time as the condemnee\naccepts the offer as payment in full, or as an advance payment, or\nprovides the necessary title papers as the case may be.\n (D) In the event an owner accepts the offer as payment in full or as\nan advance payment for property in an acquisition under supreme court\njurisdiction pursuant to subdivision (B) of section five hundred one of\nthis chapter and the condemnor determines that there is a conflict of\ntitle or a conflict arises over the percentage of the condemnation award\nwhich should be paid to each of several owners of interests in the\ncondemned property, the condemnor shall, unless it is otherwise agreed,\ndeposit the full or advance payment, as the case may be, with the clerk\nof the supreme court having jurisdiction of the claim. This deposit\nshall be placed in an interest bearing account until payment of such\nsum, including accumulated interest, is directed to be made by the court\non application of any person claiming an interest in the amount\ndeposited. After the deposit as herein provided has been made, the\ncondemnor shall notify all persons claiming an interest in the\ncondemnation award that the amount payable thereunder has been deposited\nand is subject to an application by an interested person or persons to a\ndistribution proceeding. The determination of the supreme court and\nfinal judgment of distribution shall, unless set aside or reversed on\nappeal, be final and conclusive upon the owners or other persons\nclaiming any interest in or lien or encumbrance on the property so\nappropriated and the amount deposited. A deposit pursuant to this\nsection shall terminate the condemnor's obligation to pay interest on\nthe amount so deposited provided that interest is paid on such deposit.\nNo sum paid into court or deposited shall be charged fees, commissions\nor poundage.\n (E) (1) In the event that an owner accepts the offer as payment in\nfull or as an advance payment for property in an acquisition under the\ncourt of claims jurisdiction pursuant to subdivision (A) of section five\nhundred one of this chapter and the attorney general determines that\nthere is a conflict of title or a conflict arises so that he is unable\nto make certification of the person or persons legally entitled to the\namount payable under an agreement adjusting all legal damages caused by\nany such acquisition, the condemnor shall request the comptroller to,\nand the comptroller shall, deposit the amount payable under such\nagreement in a special interest bearing account in any bank in which\nmoneys belonging to the fund from which such compensation is payable may\nbe deposited, to be distributed as ordered by the court of claims on\napplication of any person claiming an interest in the amount deposited.\nAfter making the deposit as herein provided, the attorney general shall\nnotify all parties claiming an interest in the fund that the amount\npayable thereunder has been deposited and is subject to an application\nby an interested person or persons to a distribution proceeding. The\nprocedure on such an application shall be the same as provided in\nsection twenty-three of the court of claims act respecting the\ndistribution of deposited court of claims awards, except that the\nproceeding shall be conducted in the court of claims, in the district in\nwhich the appropriated property is located and such application shall be\nmade by filing the original and one copy of the verified petition with\nthe chief clerk of the court of claims in Albany, and upon service of a\ncopy of the verified petition upon the attorney general at his office in\nAlbany. The determination of the court of claims and final judgment of\ndistribution shall, unless set aside or reversed on appeal, be final and\nconclusive upon the owners or other persons claiming any interest in or\nlien or encumbrance on the property so appropriated and the amount\ndeposited. No judgment of distribution shall be made unless the court\nshall first obtain personal jurisdiction over all persons certified by\nthe attorney general as having or claiming to have an interest in the\nfund.\n A deposit made pursuant to this paragraph shall terminate the\ncondemnor's obligation to pay interest on the amount so deposited\nprovided that interest is paid on such deposit. No sum paid into court\nor deposited shall be charged fees, commissions or poundage.\n In the event a condemnee at any time subsequent to a deposit made\npursuant to this paragraph one, but prior to an application for\ndistribution, provides the condemnor with the papers referred to in\nsubdivision (C) of this section in a form satisfactory to the attorney\ngeneral, the condemnor shall request the comptroller to, and the\ncomptroller shall, without any court order being required, withdraw the\nsum deposited together with all interest accrued thereon, and redeposit\nthe same, including the interest thereon, to the account from which it\nwas withdrawn for the purpose of effecting payment by the comptroller as\nprovided by law.\n (2) In the event that an owner does not accept the offer as payment in\nfull or as an advance payment for property in an acquisition under the\ncourt of claims jurisdiction pursuant to subdivision (A) of section five\nhundred one of this chapter, at any time subsequent to the vesting of\ntitle in the state of New York, but in no event after ninety days from\nthe vesting of title in the state of New York, the condemnor shall, upon\nreceiving written approval of the attorney general, request the\ncomptroller to, and the comptroller shall, after his audit and\nacceptance of the highest approved appraisal referred to in section\nthree hundred three and paragraph one of subdivision (A) of section\nthree hundred four herein, deposit the amount of the condemnor's offer\nin a special interest bearing account in any bank in which moneys\nbelonging to the fund from which such compensation is payable may be\ndeposited, to be distributed as ordered by the court of claims on\napplication of any person claiming an interest in the amount deposited.\n Notwithstanding any other provision of law to the contrary, if such an\nacquisition is being made for a federally-aided project and the\ncondemnor determines it necessary to deposit the amount of the highest\nappraised value without delay in order to proceed with the letting of a\nconstruction contract and to comply with federal laws, rules and\nregulations, the condemnor may request the comptroller to make the\ndeposit herein provided at any time subsequent to the vesting of title\nin the state of New York and provided an offer of payment in full or as\nan advance payment has been made to the owner. The written approval of\nthe attorney general shall not be necessary under this paragraph, but\nthe comptroller shall, after making the aforesaid deposit, transmit to\nthe attorney general a notice in writing approximately identifying the\nproceeding or project, the map and parcel number or numbers and the name\nof the depository bank, together with the date and amount of the\ndeposit.\n After the deposit has been made as herein provided, the attorney\ngeneral shall notify all parties having or claiming to have an interest\nin the fund that the amount payable thereunder has been deposited and is\nsubject to an application by an interested person or persons to a\ndistribution proceeding. The procedure on such an application shall be\nthe same as provided in section twenty-three of the court of claims act\nrespecting the distribution of deposited court of claims awards, except\nthat the proceeding shall be conducted in the court of claims, in the\ndistrict in which the appropriated property is located and such\napplication shall be made by filing the original and one copy of the\nverified petition with the chief clerk of the court of claims in Albany,\nand upon service of a copy of the verified petition upon the attorney\ngeneral at his office in Albany. The determination of the court of\nclaims, and final judgment of distribution shall, unless set aside or\nreversed on appeal, be final and conclusive upon the owners or other\npersons claiming any interest in or lien or encumbrance on the property\nso appropriated and the amount deposited. No judgment of distribution\nshall be made unless the court shall first obtain personal jurisdiction\nover all persons certified by the attorney general as having or claiming\nto have an interest in the fund.\n A deposit made pursuant to this paragraph shall terminate the\ncondemnor's obligation to pay interest on the amount so deposited\nprovided that interest is paid upon such deposit. No sum paid into court\nor deposited shall be charged fees, commissions or poundage.\n In the event an offer is accepted subsequent to a deposit made\npursuant to this paragraph and if no application for distribution has\nbeen made, the condemnor shall request the comptroller to, and the\ncomptroller shall, without any court order being required, withdraw the\nsum deposited together with all interest accrued thereon, and redeposit\nthe same including interest thereon to the account from which it was\nwithdrawn for the purpose of effecting payment by the comptroller as\nprovided by law.\n (3) Nothing contained in this section shall, in any way, affect the\nright of a condemnee who has not accepted the condemnor's offer as\npayment in full from filing a claim in the court of claims within the\ntime limited therefor.\n Furthermore, in the event three years from the date of any deposit\nmade pursuant to this subdivision have elapsed, and no application for\ndistribution as aforesaid has been made, the comptroller may, without\nany court order, withdraw the sum deposited together with all interest\naccrued thereon and redeposit the same in the account from which such\nsum was withdrawn for the purpose of effecting payment by the\ncomptroller as provided by law.\n (4) Notwithstanding the provisions of paragraphs one and two of this\nsubdivision, the comptroller is authorized, at his discretion, to make\nany deposits required pursuant to paragraphs one and two of this\nsubdivision into the eminent domain account created pursuant to section\nninety-seven-dd of the state finance law. Such deposits may be invested\nwith other state moneys by the comptroller in those obligations\nspecified in section ninety-eight-a of the state finance law.\nNotwithstanding the provisions of section sixteen of the state finance\nlaw or any other general or special law to the contrary, if moneys are\ndeposited by the comptroller in the eminent domain account established\npursuant to section ninety-seven-dd of the state finance law, the\ncondemnee shall be entitled to receive interest at the rate determined\nby the comptroller based on the rate of earnings of such investments\nduring the period of deposit.\n (F) At any time subsequent to making the written offer, the amount of\nsuch offer may be adjusted or revised by the condemnor to reflect\ncorrection of error or miscalculation.\n (G) The reservation of the right to claim additional compensation,\npursuant to paragraph three of subdivision (A) of this section, shall\nnot extend or affect in any way the time limit for the filing of such\nclaim as provided in section five hundred three of this law.\n (H) When an advance payment to a condemnee made pursuant to this\nsection by the condemnor exceeds the award of the court for that\nproperty, the court shall, on motion, enter judgment in favor of the\ncondemnor for the amount of such excess and appropriate interest. Such\nmotion shall be made on notice served within thirty days after delivery\nto the condemnor of the decision of the court making the award.\n