§ 401 — Land; purchase or acquisition

New York § 401

• Jurisdiction: New York
• Law PBH: Public Health
• Title 1: General Provisions
• Art. 4: Property and Hospitals In the Department of Health

Text

§ 401. Land; purchase or acquisition. 1. The commissioner, when an\nappropriation therefor has been made by the legislature, may acquire any\nreal property which he may deem necessary for any departmental purpose\nby purchase or acquisition pursuant to the eminent domain procedure law.\n Title to any such real property shall be taken in the name of and be\nvested in the people of the state of New York; provided, however, that\nno real property shall be so acquired by purchase unless the title\nthereto shall be approved by the attorney general.\n 2. Whenever real property is to be acquired pursuant to the eminent\ndomain procedure law the commissioner shall cause to be made by the\nstate department of transportation an accurate acquisition map as\nprovided in such law.\n 3. On the approval of such map by the commissioner, the original\ntracing of such map shall be filed in the main office of the department.\n 4. If the commissioner shall determine, prior to the filing of such\nmap in the office of the clerk or register of the county, that changes,\nalterations or modifications of such map as filed in the main office of\nthe department should be made, he or she shall, subject to the\nprovisions of article two of the eminent domain procedure law, if\napplicable, direct the preparation by the department of transportation\nof an amended map. On the approval of such amended map by the\ncommissioner, it shall be filed in the main office of the department and\nthe amended map shall thereupon in all respects and for all purposes\nsupersede the map previously filed.\n 5. If the commissioner shall determine, prior to the filing of a copy\nof such acquisition map in the office of the county clerk or register as\nprovided in section four hundred two of the eminent domain procedure\nlaw, that such map should be withdrawn, he or she may file a certificate\nof withdrawal in the offices of the department and of the department of\nlaw. Upon the filing of such certificate of withdrawal, the map to which\nit refers shall be cancelled and all rights thereunder shall cease and\ndetermine.\n 6. The commissioner shall deliver to the attorney general a copy of\nsuch acquisition map, whereupon it shall be the duty of the attorney\ngeneral to advise and certify to the commissioner the names of the\nowners of the property, easements, interests or rights described in the\nsaid acquisition map, including the owners of any right, title or\ninterest therein, pursuant to the requirements of section four hundred\nthree of the eminent domain procedure law.\n 7. 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 shall deem it necessary to cause the removal of an\nowner or occupant from any real property so acquired, he may cause such\nowner or occupant to be removed therefrom by proceeding in accordance\nwith section four hundred five of the eminent domain procedure law. The\nproceeding shall be brought in the name of the commissioner as agent of\nthe state and the attorney general shall represent the petitioner in the\nproceedings. No execution shall issue for costs, if any, awarded against\nthe state or the commissioner, but they shall be part of the costs of\nthe acquisition of the real property and be paid in like manner.\nProceedings may be brought separately against one or more of the owners\nor occupants of any such property, or one proceeding may be brought\nagainst all or several of the owners or occupants of any or all such\nproperty within the territorial jurisdiction of the same court, justice\nor judge; judgment shall be made 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 8. Claims for the value of any property acquired and for legal damages\ncaused by any such acquisition may be adjusted by the commissioner, even\nthough a claim has been filed with the court of claims, if the amount\nthereof can be agreed upon with the owner or owners thereof. If the\namount of a claim cannot be agreed upon, the commissioner shall offer to\nthe owner or owners the amount determined by the commissioner to be the\nvalue of such claim. Upon the acceptance of such offer the commissioner\nshall enter into an agreement with such owner or owners providing for\nsuch payment with interest thereon, if any, as allowed by law and\nreserving to such owner or owners the right to file such claim with the\ncourt of claims or if a claim has been filed reserving the right to\nprosecute said claim. The reservation of the right to file said claim in\nthe court of claims shall not extend or affect in any way the time\nlimited for the filing of such claim as provided for in the court of\nclaims act. The failure of the owner or owners to file said claim within\nthe time of filing claims specified by the court of claims act shall be\ndeemed an acceptance of the amount paid as full settlement of such\nclaim. If such offer is refused by the owner or owners, or is not\naccepted within ninety days after notification by the commissioner of\nsuch offer by registered mail, interest on the amount of the claim so\noffered shall be suspended from the date of such refusal or the\nexpiration of such ninety days, whichever is earlier, to the date of the\nentry of judgment in the court of claims. If such offer is refused or is\nnot accepted within said ninety days the offer shall be deemed withdrawn\nand may be revived only at the discretion of the commissioner. Upon\nmaking any agreement provided for in section three hundred four of the\neminent domain procedure law, the commissioner shall deliver to the\ncomptroller such agreement and a certificate stating the amount due such\nowner or owners thereunder on account of such acquisition of his or\ntheir property and the amounts so fixed shall be paid out of the state\ntreasury after audit by the comptroller from moneys appropriated for the\nacquisition of such real property, but not until there shall have been\nfiled with the comptroller a certificate of the attorney general showing\nthe person or persons claiming the amounts so agreed upon to be legally\nentitled thereto.\n 9. Application for reimbursement of incidental expenses as provided in\nsection seven hundred two of the eminent domain procedure law shall be\nmade to the commissioner upon forms prescribed by him and shall be\naccompanied by such information and evidence as the commissioner may\nrequire. Upon approval of such application, the commissioner 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 the state treasury after audit by the comptroller from monies\nappropriated for the acquisition of property under this section.\n 10. The commissioner, with the approval of the director of the budget,\nshall establish and may from time to time amend rules and regulations\nauthorizing the payment of actual reasonable and necessary moving\nexpenses of occupants of property acquired pursuant to this section; of\nactual direct losses of tangible personal property as a result of moving\nor discontinuing a business or farm operation, but not exceeding an\namount equal to the reasonable expenses that would have been required to\nrelocate such property, as determined by the commissioner; and actual\nreasonable expenses in searching for a replacement business or farm; or\nin hardship cases for the advance payment of such expenses and losses.\nFor the purposes of making payment of such expenses and losses only the\nterm "business" means any lawful activity conducted primarily for\nassisting in the purchase, sale, resale, manufacture, processing or\nmarketing of products, commodities, personal property or services by the\nerection and maintenance of an outdoor advertising display or displays,\nwhether or not such display or displays are located on the premises on\nwhich any of the above activities are conducted. Such rules and\nregulations may further define the terms used in this subdivision. In\nlieu of such actual reasonable and necessary moving expenses, any such\ndisplaced owner or tenant of residential property may elect to accept a\nmoving expense allowance, plus a dislocation allowance, determined in\naccordance with a schedule prepared by the commissioner and made a part\nof such rules and regulations. In lieu of such actual reasonable and\nnecessary moving expenses, any such displaced owner or tenant of\ncommercial property who relocates or discontinues his business or farm\noperation may elect to accept a fixed relocation payment in an amount\nequal to the average annual net earnings of the business or farm\noperation, except that such payment shall be not less than two thousand\nfive hundred dollars nor more than ten thousand dollars. In the case of\na business, no such fixed relocation payment shall be made unless the\ncommissioner finds and determines that the business cannot be relocated\nwithout a substantial loss of its existing patronage, and that the\nbusiness is not part of a commercial enterprise having at least one\nother establishment, which is not being acquired by the state or the\nUnited States, which is engaged in the same or similar business. In the\ncase of a business which is to be discontinued but for which the\nfindings and determinations set forth above cannot be made, the\ncommissioner may prepare an estimate of what the actual reasonable and\nnecessary moving expenses, exclusive of any storage charges, would be if\nthe business were to be relocated and enter into an agreed settlement\nwith the owner of such business for an amount not to exceed such\nestimate in lieu of such actual reasonable and necessary moving\nexpenses. Application for payment under this subdivision shall be made\nto the commissioner upon forms prescribed by him and shall be\naccompanied by such information and evidence as the commissioner may\nrequire. Upon approval of such application, the commissioner shall\ndeliver a copy thereof to the comptroller together with a certificate\nstating the amount due thereunder, and the amount so fixed shall be paid\nout of the state treasury after audit by the comptroller from moneys\nappropriated for the acquisition of property under this section. As used\nin this subdivision the term "commercial property" shall include\nproperty owned by an individual, family, partnership, corporation,\nassociation or a nonprofit organization and includes a farm operation.\nAs used in this subdivision the term "business" means any lawful\nactivity, except a farm operation, conducted primarily for the purchase,\nsale, lease and rental of personal and real property, and for the\nmanufacture, processing, or marketing of products, commodities, or any\nother personal property; for the sale of services to the public; or by a\nnonprofit organization.\n 11. Authorization is hereby given to the commissioner 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 him. The\ncommissioner, with the approval of the director of the budget, may\nestablish and from time to time amend rules and regulations providing\nfor such supplemental relocation payments. Such rules and regulations\nmay further define the terms used in this subdivision. In the case of\nproperty acquired pursuant to this section which is improved by a\ndwelling actually owned and occupied by the displaced owner for not less\nthan one hundred eighty days immediately prior to initiation of\nnegotiations for the acquisition of such property, such payment to such\nowner shall not exceed fifteen thousand dollars. Such payment shall be\nthe amount, if any, which, when added to the acquisition payment equals\nthe average price, established by the commissioner on a class, group or\nindividual basis, required to obtain a comparable replacement dwelling\nthat is decent, safe and sanitary to accommodate the displaced owner,\nreasonably accessible to public services and places of employment and\navailable on the private market, but in no event shall such payment\nexceed the difference between acquisition payment and the actual\npurchase price of the replacement dwelling. Such payment shall include\nan amount which will compensate such displaced owner for any increased\ninterest costs which such person is required to pay for financing the\nacquisition of any such comparable replacement dwelling. Such amount\nshall be paid only if the dwelling acquired pursuant to this section was\nencumbered by a bona fide mortgage which was a valid lien on such\ndwelling for not less than one hundred eighty days prior to the\ninitiation of negotiations for the acquisition of such dwelling. Such\namount shall be equal to the excess in the aggregate interest and other\ndebt service costs of that amount of the principal of the mortgage on\nthe replacement dwelling which is equal to the unpaid balance of the\nmortgage on the acquired dwelling, over the remainder term of the\nmortgage on the acquired dwelling, reduced to discounted present value.\nThe discount rate shall be the prevailing interest rate paid on savings\ndeposits by commercial banks in the general area in which the\nreplacement dwelling is located. Any such mortgage interest differential\npayment shall, notwithstanding the provisions of section twenty-six-b of\nthe general construction law, be in lieu of and in full satisfaction of\nthe requirements of such section. Such payment shall include reasonable\nexpenses incurred by such displaced owner for evidence of title,\nrecording fees and other closing costs incident to the purchase of the\nreplacement dwelling, but not including prepaid expenses. Such payment\nshall be made only to a displaced owner who purchases and occupies a\nreplacement dwelling which is decent, safe and sanitary within one year\nsubsequent to the date on which he is required to move from the dwelling\nacquired pursuant to this section or the date on which he receives from\nthe state final payment of all costs of the acquired dwelling, whichever\noccurs later, except advance payment of such amount may be made in\nhardship cases. In the case of property acquired pursuant to this\nsection from which an individual or family, not otherwise eligible to\nreceive a payment pursuant to the above provisions of this subdivision,\nis displaced from any dwelling thereon which has been actually and\nlawfully occupied by such individual or family for not less than ninety\ndays immediately prior to the initiation of negotiations for the\nacquisition of such property, such payment to such individual or family\nshall not exceed four thousand dollars. Such payment shall be the\namount which is necessary to enable such individual or family to lease\nor rent for a period not to exceed four years, a decent, safe, and\nsanitary dwelling of standards adequate to accommodate such individual\nor family in areas not generally less desirable in regard to public\nutilities and public and commercial facilities and reasonably accessible\nto his place of employment, but shall not exceed four thousand dollars,\nor to make the down payment, including reasonable expenses incurred by\nsuch individual or family for evidence of title, recording fees, and\nother closing costs incident to the purchase of the replacement\ndwelling, but not including prepaid expenses, on the purchase of a\ndecent, safe and sanitary dwelling of standards adequate to accommodate\nsuch individual or family in areas not generally less desirable in\nregard to public utilities and public and commercial facilities, but\nshall not exceed four thousand dollars, except if such amount exceeds\ntwo thousand dollars, such person must equally match any such amount in\nexcess of two thousand dollars, in making the down payment. Such\npayments may be made in installments as determined by the commissioner.\nApplication for payment under this subdivision shall be made to the\ncommissioner upon forms prescribed by him and shall be accompanied by\nsuch information and evidence as the commissioner may require. Upon\napproval of such application, the commissioner shall deliver a copy\nthereof to the comptroller, together with a certificate stating the\namount due thereunder, and the amount so fixed shall be paid out of the\nstate treasury after audit by the comptroller from moneys appropriated\nfor the acquisition of property under this section.\n 12. The owner of any real property so acquired may present to the\ncourt of claims, pursuant to section five hundred three of the eminent\ndomain procedure law, a claim for the value of such property acquired\nand for legal damages caused by such acquisition, as provided by law for\nthe filing of claims with the court of claims. Awards and judgments of\nthe court of claims shall be paid in the same manner as awards and\njudgments of that court for the acquisition of lands generally and shall\nbe paid out of the state treasury after audit by the comptroller from\nmoneys appropriated for the acquisition of such real property.\n 14. If the commissioner shall determine subsequent to the acquisition\nof a temporary easement in any real property that the purposes for which\nsuch easement right was acquired have been accomplished and that the\nexercise of such easement is no longer necessary, he shall make his\ncertificate that the exercise of such easement is no longer necessary\nand that such easement right is therefore terminated, released and\nextinguished. The commissioner shall cause such certificate to be filed\nin the office of the department of state and upon such filing all rights\nacquired by the state in such property shall cease and determine. The\ncommissioner shall cause a certified copy of such certificate as so\nfiled in the office of the department of state to be mailed to the owner\nof the property affected, as certified by the attorney general, if the\nplace of residence of such owner is known or can be ascertained by a\nreasonable effort and such commissioner shall cause a further certified\ncopy of such certificate to be filed in the office of the recording\nofficer of each county in which the property affected or any part\nthereof is situated. On the filing of such certified copy of such\ncertificate with such recording officer, it shall be his duty to record\nthe same in his office in the books used for recording deeds and to\nindex the same against the name of the people of the state of New York\nas grantor.\n 15. Notwithstanding any other provision of this section, the\ncommissioner shall have the power to acquire by grant or purchase, in\nthe name of the people of the state of New York, any property which he\ndeems necessary for any of the purposes provided for in this section and\nmay also 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 departmental purposes would result in substantial\nconsequential damages to the owner's remaining property, due to loss of\naccess, severance or control of access, the commissioner of\ntransportation, for and in behalf of the people of the state of New\nYork, may acquire by purchase or grant all or any portion of such\nremaining property. Payment therefor, if any, shall be made in the\nmanner prescribed in this section for the payment of adjusted\nappropriation claims, provided, however, that no real property shall be\nso acquired unless the title thereto shall be approved by the attorney\ngeneral.\n