§ 402 — Filing of acquisition maps; vesting

New York § 402

• Jurisdiction: New York
• Law EDP: Eminent Domain Procedure
• Art. 4: Vesting; Possession; Abandonment

Text

§ 402. Filing of acquisition maps; vesting. (A) In all acquisitions\nunder the court of claims jurisdiction provided in subdivision (A) of\nsection five hundred one herein, prior to acquiring property, the state\nof New York, within the time prescribed by section four hundred one of\nthis law, shall:\n (1) file in the main office of the agency, department, or authority or\npublic benefit corporation for which the acquisition is being made, the\noriginal tracing of the acquisition map or a microfilm or computer\ndigitized copy of the original acquisition map of any real property\nwhich it deems necessary for purposes connected with a proposed public\nproject, indicating and describing in each instance the particular\neasement, interest or right, in the real property that is acquired\nincluding metes and bounds or section, block and lot numbers; and\n (2) notify condemnees by first class mail that the condemning party is\nnow taking steps to acquire such property, thereupon, subject to the\nprovisions of this law, the people of the state of New York, their\nofficers and agents may immediately enter upon and take possession of\nthe real property so described for any and all purposes connected with\nthe proposed public project; and\n (3) file a certified copy of such acquisition map in the office of the\ncounty clerk or register of each county in which such property or any\nportion thereof is situated, and thereupon, the acquisition of the\nproperty by the state, described in such map shall be deemed complete\nand title to such property shall be vested in the state.\n (4) if the condemnor deems it necessary to acquire immediately any\nproperty which is in the bed or beds of any streams, lakes, streets,\nroads, highways, or rights of way for purposes connected with the\nproposed public project, it shall cause to be prepared an accurate\ndescription and map of such property, indicating and describing in each\ncase the particular easement, interest or right. On the approval of such\ndescription and map by the condemnor, it may proceed to vest title in\nsuch property, easements, interests or rights by acquisition in the\nmanner hereinafter provided. Such description and the original tracing\nof such map or a microfilm or computer digitized copy of the original\ntracing shall be filed in the office of the condemnor. On the filing of\nsuch description and map in the office of the condemnor, the people of\nthe state, their officers and agents, may immediately enter upon and\ntake possession of the property so described for any and all purposes\nconnected with the proposed public project. A certified copy of such\ndescription and map shall be filed by the condemnor in the office of the\ncounty clerk or register of each county in which such property is\nsituated and thereupon the acquisition by the state of the property\ndescribed in such description and map shall be deemed complete, and the\ntitle to such property shall vest in the people of the state.\n Upon the completion of the filing in the office of the county clerk or\nregister as aforesaid, the condemnor shall cause a notice of such filing\nof the description and map, together with a description of such\nproperty, to be published at least once in a newspaper published and\nhaving general circulation in each county where such property is\nsituated. Claims for the value of the property acquired and for legal\ndamages caused by any such acquisition may be adjusted by the condemnor\nin the manner provided by law notwithstanding that a claim has been\nfiled with the court of claims, and in all cases where claims for such\ndamages have been agreed upon or an award has been made by the court of\nclaims, the claimant shall submit to the attorney general such proof of\ntitle to the property so acquired as shall be satisfactory to the\nattorney general. All other statutory provisions relating to claims on\naccount of such acquisition shall apply to claims which may arise under\nthis subdivision with the same force and effect.\n (B) In all acquisitions under supreme court jurisdiction provided in\nsubdivision (B) of section five hundred one herein, the condemnor, prior\nto filing an acquisition map within the time prescribed by section four\nhundred one, shall obtain an order to acquire such property and for\npermission to file such map by presentation of a verified petition to\nthe supreme court in the judicial district where the real property to be\nacquired or any part thereof, is situated, in accordance with the\nfollowing procedure:\n (1) The condemnor shall cause to be filed in the office of the clerk\nof each county where the real property to be acquired or any part\nthereof is situated, a notice of the pendency of such proceeding. Such\nnotice shall briefly state the object of the proceeding and shall\ncontain a general description by metes and bounds or by section, block\nand lot number of the real property to be acquired thereby. It shall\nalso state the names of such of the reputed condemnees of such real\nproperty as may be known to the condemnor, and in case any of the\ncondemnees are unknown, a statement to that effect shall be made in such\nnotice.\n (2) The condemnor shall, at least twenty days prior to the return date\nof the petition, serve a notice of the time, place and object of the\nproceeding upon the owner of record of the property to be acquired, as\nthe same appears from the record of the office in which the acquisition\nmap is to be filed. Said notice shall contain a copy of that portion of\nthe proposed acquisition map affecting the owner's property. Service\nshall be made pursuant to the civil practice law and rules or by\nregistered or certified mail, return receipt requested. If service is\nmade by mail it shall be sent to the last known address of the owner,\nand the following provisions shall also apply:\n (a) At least ten but not more than thirty days before the return date\nof the application, the condemnor shall also cause a copy of a diagram\nor representation of the acquisition map showing the perimeters to be\nacquired and a notice generally describing the property to be acquired\nby metes and bounds or by section, block and lot numbers, to be\nadvertised by publishing in at least ten successive issues of an\nofficial newspaper if there is one designated in the locality where the\nproperty is situated, and in at least ten successive issues of a\nnewspaper of general circulation in such locality. If the official\nnewspaper is one of general circulation in such locality, publication\ntherein as specified shall be deemed sufficient compliance. In the event\nthat the only newspaper available in such locality is a weekly\npublication the above described notice shall be published in such\nnewspaper in at least three successive issues. Where the condemnor has\nconducted an article two public hearing or when the condemnor is exempt\nfrom compliance with article two pursuant to section two hundred six the\ncondemnor may dispense with the requirement of publication in ten\nsuccessive issues of a newspaper of general circulation.\n (b) Where practicable, the condemnor shall cause copies of such notice\nin the form of handbills to be posted for the same period in at least\nthree conspicuous places, upon or near such real property. The\ninadvertent failure to notify any condemnee, whether of record or not,\nwill not invalidate any proceedings brought hereunder or any title\nacquired by the condemnor under this law.\n (3) The condemnor shall present to the court a petition verified by an\nauthorized officer of the condemnor setting forth:\n (a) a statement providing either the compliance with the requirements\nof article two of this law, including a copy of the condemnor's\ndetermination and findings or a statement providing the basis of\nexemption from article two;\n (b) a copy of the proposed acquisition map to be filed and the names\nand places of residence of the condemnees of the property to be\nacquired;\n (c) a description of the real property to be acquired and its\nlocation, either by metes and bounds of each individual parcel, or\nsection, block and lot number, and by reference to the acquisition map\nand notice of pendency attached to the petition;\n (d) the public use, benefit or purpose for which the property is\nrequired;\n (e) a request that the court direct entry of an order authorizing the\nfiling of the acquisition map in the office of the appropriate county\nclerk or register and that upon such filing, title shall vest in the\ncondemnor;\n (f) if a non-governmental condemnor subject to the jurisdiction,\nsupervision and regulation of the public service commission or the\ncommissioner of transportation, it shall include in its petition for\nacquisition, notice that it shall deposit a bond or undertaking with the\nclerk of the court prior to vesting of title to the real property\ndescribed in such petition in an amount to be fixed by the court on the\nreturn date of the petition. The court shall direct that the bond or\nundertaking will be applied in the amount necessary, for any default by\nthe condemnor in the payment of all or part of the damages determined in\nthe acquisition proceeding or the abandonment thereof.\n The requirement for a bond or undertaking under this subdivision, may\nbe waived by stipulation of the parties. If the amount deposited is\ninsufficient to pay such damages and all costs and expenses awarded to a\ncondemnee, judgment shall be entered against the condemnor for the\ndeficiency, to be enforced and collected in the same manner as a\njudgment in the supreme court;\n * (g) if the property is to be used for the construction of a major\nutility transmission facility, as defined in section one hundred twenty\nof the public service law with respect to which a certificate of\nenvironmental compatibility and public need has been issued under such\nlaw, a statement that such certificate relating to such property has\nbeen issued and is in force, or if the property is to be used for the\nconstruction of a major electric transmission facility, as defined under\narticle VIII of the public service law, with respect to which a major\nelectric transmission facility siting permit has been issued under such\nlaw, a statement that such permit relating to such property has been\nissued and is in force.\n * NB Effective until December 31, 2040\n * (g) if the property is to be used for the construction of a major\nutility transmission facility, as defined in section one hundred twenty\nof the public service law, or major steam electric generating facility\nas defined in section one hundred forty of such law with respect to\nwhich a certificate of environmental compatibility and public need has\nbeen issued under such law, a statement that such certificate relating\nto such property has been issued and is in force.\n * NB Effective December 31, 2040\n (4) Upon the presentation of the petition and notice with proof of\nservice thereof, a condemnee may appear and interpose a verified answer,\nwhich must contain specific denial of each material allegation of the\npetition controverted by him, or of any knowledge or information\nthereof, sufficient to form a belief, or a statement of new matter\nconstituting a defense to the proceeding.\n (5) At the time and place mentioned in such notice, unless the court\nshall adjourn the application to a subsequent date, and in that event at\nthe time and place to which the same may be adjourned, upon due proof of\nservice of notice and upon filing of such petition and proof to its\nsatisfaction that the procedural requirements of this law have been met,\nthe court shall direct the immediate filing and entry of the order\ngranting the petition, which order the condemnor shall file and enter\ntogether with the acquisition map and the bond or undertaking if\nrequired, in the office of the county clerk or register in each county\nin which the real property or any part thereof is situated. Upon the\nfiling of the order and the acquisition map, the acquisition of the\nproperty in such map shall be complete and title to such property shall\nthen be vested in the condemnor.\n (6) When it appears to the satisfaction of the court at any stage of\nthe proceedings, that the public interests will be prejudiced by delay,\nit may direct that the condemnor be permitted to enter immediately upon\nthe real property to be taken, and devote it temporarily to the public\nuse specified in the petition, upon the deposit with the court of a sum\nto be fixed by the court upon a notice to the parties of not less than\neight days, and such sum when so fixed and deposited, shall be applied,\nso far as it may be necessary for that purpose, to the payment of any\naward that may be made with interest thereon from the date of the entry\nof the condemnor upon such real property, and the costs and expenses of\nthe proceeding, and the residue, if any, returned to the condemnor and,\nin case the petition should be dismissed, or no award should be made, or\nthe proceedings should be abandoned by the condemnor, the court shall\ndirect that the money so deposited, so far as it may be necessary, shall\nbe applied to the payment of any damages which a condemnee may have\nsustained by such entry upon and use of his property, and his costs and\nexpenses of the proceedings, such damages to be ascertained by the\ncourt, and if the sum so deposited shall be insufficient to pay such\ndamages, and all costs and expenses awarded to the property owner,\njudgment shall be entered against the condemnor for the deficiency, to\nbe enforced and collected in the same manner as a judgment in supreme\ncourt; and the possession of the property shall be restored.\n