N.Y. SOS Law § 40 — New York Code / Act SOS / Article 2 / Section 40
Real property; purchase or acquisition
Status: in_force

§ 40. Real property; purchase or acquisition.  1.  The commissioner,\nwhen an appropriation therefor has been made by the legislature, may\nacquire any real property which he may deem necessary for any\ndepartmental purpose by purchase or, in the manner provided in the\neminent domain procedure law.  Title to any such real property shall be\ntaken in the name of and be vested in the people of the state of New\nYork; provided, however, that no real property shall be so acquired by\npurchase unless the title thereto shall be approved by the attorney\ngeneral.\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 so\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\npursuant to the eminent domain procedure law.\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 office of the\ndepartment should be made, he or she shall, subject to the provisions of\narticle two of the eminent domain procedure law, if applicable, direct\nthe preparation by the department of transportation of an amended map.\nOn the approval of such amended map by the commissioner, it shall be\nfiled in the main office of the department and the amended map shall\nthereupon in all respects and for all purposes supersede the map\npreviously 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 paragraph three of subdivision (A) of section four hundred\ntwo of the eminent domain procedure law, that such map should be\nwithdrawn, he or she may file a certificate of withdrawal in the offices\nof the department and of the department of law. Upon the filing of such\ncertificate of withdrawal, the map to which it refers shall be\ncancelled, and all rights thereunder shall cease and determine.\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\npeople of the state of New York as provided for in the eminent domain\nprocedure law, the commissioner shall deem it necessary to cause the\nremoval of an owner or occupancy from any real property so acquired, he\nmay cause such owner or occupant to be removed therefrom by proceeding\nin accordance with section four hundred five of the eminent domain\nprocedure law.  The proceeding shall be brought in the name of the\ncommissioner as agent of the state and the attorney general shall\nrepresent the petitioner in the proceedings.  No execution shall issue\nfor costs, if any, awarded against the state or the commissioner, but\nthey shall be part of the costs of the acquisition of the real property\nand be paid in like manner.  Proceedings may be brought separately\nagainst one or more of the owners or occupants of any such property, or\none proceeding may be brought against all or several of the owners or\noccupants of any or all such property within the territorial\njurisdiction of the same court, justice or judge; judgment shall be made\nfor immediate removal of persons defaulting in appearance or in\nanswering, or withdrawing their answers, if any, without awaiting the\ntrial or decision of issues raised by contestants, if any.\n  8.  Upon making any agreement provided for in section three hundred\nfour of the eminent domain procedure law, the commissioner shall deliver\nto the comptroller such agreement and a certificate stating the amount\ndue such owner or owners thereunder on account of such acquisition of\nhis or their property and the amounts so fixed shall be paid out of the\nstate treasury after audit by the comptroller from moneys appropriated\nfor the acquisition of such real property, but not until there shall\nhave been filed with the comptroller a certificate of the attorney\ngeneral showing the person or persons claiming the amount so agreed upon\nto be legally entitled thereto.\n  9.  Application for reimbursement of incidental expenses as provided\nin section seven hundred two of the eminent domain procedure law shall\nbe made 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\nbudget, shall establish and may from time to time amend rules and\nregulations authorizing the payment of actual reasonable and necessary\nmoving expenses of occupants of property acquired pursuant to this\nsection;  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\ncommissioner; 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 commissioner 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\nfixed relocation payment shall be made unless the commissioner 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 commissioner 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 commissioner upon forms prescribed by\nhim and shall be accompanied by such information and evidence as the\ncommissioner may require.  Upon approval of such application, the\ncommissioner 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  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\ndifferential payment shall, notwithstanding the provisions of section\ntwenty-six-b of the general construction law, be in lieu of and in full\nsatisfaction of the requirements of such section.  Such payment shall\ninclude reasonable expenses incurred by such displaced owner for\nevidence of title, recording fees and other closing costs incident to\nthe purchase of the replacement dwelling, but not including prepaid\nexpenses.  Such payment shall be made only to a displaced owner who\npurchases and occupies a replacement dwelling which is decent, safe and\nsanitary within one year subsequent to the date on which he is required\nto move from the dwelling acquired pursuant to this section or the date\non which he receives from the state final payment of all costs of the\nacquired dwelling, whichever occurs later, except advance payment of\nsuch amount may be made in hardship cases.  In the case of property\nacquired pursuant to this section from which an individual or family,\nnot otherwise eligible to receive a payment pursuant to the above\nprovisions of this subdivision, is displaced from any dwelling thereon\nwhich has been actually and lawfully occupied by such individual or\nfamily for not less than ninety days immediately prior to the initiation\nof negotiations for the acquisition of such property, such payment to\nsuch individual or family shall not exceed four thousand dollars.  Such\npayment shall be the amount which is necessary to enable such individual\nor family to lease or rent for a period not to exceed four years, 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 and\nreasonably accesible to his place of employment, but shall not exceed\nfour thousand dollars, or to make the down payment, including reasonable\nexpenses incurred by such individual or family for evidence of title,\nrecording fees, and other closing costs incident to the purchase of the\nreplacement dwelling, but not including prepaid expenses, on the\npurchase of a decent, safe and sanitary dwelling of standards adequate\nto accommodate such individual or family in areas not generally less\ndesirable in regard to public utilities and public and commercial\nfacilities, but shall not exceed four thousand dollars, except if such\namount exceeds two thousand dollars, such person must equally match any\nsuch amount in excess of two thousand dollars, in making the down\npayment.  Such payments may be made in installments as determined by the\ncommissioner.  Application for payment under this subdivision 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 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.\n  12. The owner of any real property so acquired may present to the\ncourt of claims, pursuant to subdivision (A) of section five hundred\nthree of the eminent domain procedure law, a claim for the value of such\nproperty and for other legal damages as provided by law for the filing\nof claims with the court of claims.  Awards and judgments of the court\nof claims shall be paid in the same manner as awards and judgments of\nthat court for the acquisition of lands generally and shall be paid out\nof the state treasury after audit by the comptroller from moneys\nappropriated for the acquisition of such real property.\n  13.  Expenses incurred in the acquisition of the property, including\nthe cost of title searches, service and publication of notices, and\nexpenses incurred in proceedings for the removal of owners or occupants,\nshall be deemed to be part of the cost of the acquisition of such real\nproperty and shall be paid accordingly out of any moneys appropriated\nfor the acquisition of such 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