NY Em Dom Pro L § 304 (2021)
2021 New York Laws EDP - Eminent Domain Procedure Article 3 - Offer and Negotiations 304 - Advance Payment; Actions Thereafter.

§  304. Advance payment; actions thereafter. (A) The written offer, or any adjustment thereof made prior to acceptance, shall state that:  (1) the offer  constitutes  the  amount  of  the  condemnor's  highest approved  appraisal  of the just compensation for the property, and that payment will be made together with appropriate interest;  (2) a condemnee may accept the offer as payment in full; or  (3) a condemnee may reject the offer as payment in  full  and  instead elect to accept such offer as an advance payment, and that such election shall  in  no way prejudice the right of a condemnee to claim additional compensation; however, the failure of the  condemnee  to  file  a  claim within  the  time  of  filing  claims  as provided in subdivision (A) of section five hundred three of this law shall be deemed an acceptance  of the amount paid as full settlement of such claim;  (4)  upon  the  acceptance  of  the  written or an adjusted offer, the condemnor  shall  enter  into  an  agreement  or  stipulation  with  the condemnee  providing  for  payment pursuant to such agreement, either as payment in full or as an advance payment. The right of the condemnee  to the  advance payment shall not be conditioned on the waiver of any other right.  (B) The offer shall be deemed rejected in the event that  a  condemnee within ninety days of the offer fails or refuses to notify the condemnor in writing that the advance payment is accepted.  (C) In the event a condemnee shall reject the offer or the offer shall be   deemed   rejected  pursuant  to  subdivision  (B)  or  a  condemnee unreasonably fails to provide the condemnor with all  papers  reasonably necessary to effect a valid transfer of title as acquired, within ninety days  of  receipt,  the  condemnor's  obligation  to pay interest on the amount of the offer shall be suspended until such time as the  condemnee accepts  the  offer  as  payment  in  full, or as an advance payment, or provides the necessary title papers as the case may be.  (D) In the event an owner accepts the offer as payment in full  or  as an  advance  payment  for property in an acquisition under supreme court jurisdiction pursuant to subdivision (B) of section five hundred one  of this  chapter  and  the condemnor determines that there is a conflict of title or a conflict arises over the percentage of the condemnation award which should be paid to each of  several  owners  of  interests  in  the condemned  property, the condemnor shall, unless it is otherwise agreed, deposit the full or advance payment, as the case may be, with the  clerk of  the  supreme  court  having  jurisdiction of the claim. This deposit shall be placed in an interest bearing account  until  payment  of  such sum, including accumulated interest, is directed to be made by the court on  application  of  any  person  claiming  an  interest  in  the amount deposited. After the deposit as  herein  provided  has  been  made,  the condemnor   shall  notify  all  persons  claiming  an  interest  in  the condemnation award that the amount payable thereunder has been deposited and is subject to an application by an interested person or persons to a distribution proceeding. The determination  of  the  supreme  court  and final  judgment  of  distribution shall, unless set aside or reversed on appeal, be final  and  conclusive  upon  the  owners  or  other  persons claiming  any  interest  in  or  lien  or encumbrance on the property so appropriated and the  amount  deposited.  A  deposit  pursuant  to  this section  shall  terminate  the condemnor's obligation to pay interest on the amount so deposited provided that interest is paid on such  deposit. No  sum  paid into court or deposited shall be charged fees, commissions or poundage.  (E) (1) In the event that an owner accepts the  offer  as  payment  in full  or  as an advance payment for property in an acquisition under the court of claims jurisdiction pursuant to subdivision (A) of section five  hundred one of this chapter and the  attorney  general  determines  that there  is  a conflict of title or a conflict arises so that he is unable to make certification of the person or persons legally entitled  to  the amount  payable under an agreement adjusting all legal damages caused by any such acquisition, the condemnor shall request  the  comptroller  to, and  the  comptroller  shall,  deposit  the  amount  payable  under such agreement in a special interest bearing account in  any  bank  in  which moneys belonging to the fund from which such compensation is payable may be  deposited,  to  be  distributed as ordered by the court of claims on application of any person claiming an interest in the amount  deposited. After  making the deposit as herein provided, the attorney general shall notify all parties claiming an interest in  the  fund  that  the  amount payable  thereunder  has been deposited and is subject to an application by an interested person or persons to  a  distribution  proceeding.  The procedure  on  such  an  application  shall  be  the same as provided in section  twenty-three  of  the  court  of  claims  act  respecting   the distribution  of  deposited  court  of  claims  awards,  except that the proceeding shall be conducted in the court of claims, in the district in which the appropriated property is located and such application shall be made by filing the original and one copy of the verified  petition  with the  chief clerk of the court of claims in Albany, and upon service of a copy of the verified petition upon the attorney general at his office in Albany. The determination of the court of claims and final  judgment  of distribution shall, unless set aside or reversed on appeal, be final and conclusive  upon the owners or other persons claiming any interest in or lien or encumbrance on the  property  so  appropriated  and  the  amount deposited.  No  judgment  of distribution shall be made unless the court shall first obtain personal jurisdiction over all persons  certified  by the  attorney  general  as having or claiming to have an interest in the fund.   A  deposit  made  pursuant  to  this  paragraph  shall  terminate  the condemnor's  obligation  to  pay  interest  on  the  amount so deposited provided that interest is paid on such deposit. No sum paid  into  court or deposited shall be charged fees, commissions or poundage.   In  the  event  a  condemnee  at any time subsequent to a deposit made pursuant to  this  paragraph  one,  but  prior  to  an  application  for distribution,  provides  the  condemnor  with  the papers referred to in subdivision (C) of this section in a form satisfactory to  the  attorney general,  the  condemnor  shall  request  the  comptroller  to,  and the comptroller shall, without any court order being required, withdraw  the sum  deposited together with all interest accrued thereon, and redeposit the same, including the interest thereon, to the account from  which  it was withdrawn for the purpose of effecting payment by the comptroller as provided by law.  (2) In the event that an owner does not accept the offer as payment in full  or  as an advance payment for property in an acquisition under the court of claims jurisdiction pursuant to subdivision (A) of section five hundred one of this chapter, at any time subsequent to  the  vesting  of title  in  the state of New York, but in no event after ninety days from the vesting of title in the state of New York, the condemnor shall, upon receiving  written  approval  of  the  attorney  general,  request   the comptroller   to,  and  the  comptroller  shall,  after  his  audit  and acceptance of the highest approved  appraisal  referred  to  in  section three  hundred  three  and  paragraph  one of subdivision (A) of section three hundred four herein, deposit the amount of the  condemnor's  offer in  a  special  interest  bearing  account  in  any bank in which moneys belonging to the fund from which such compensation  is  payable  may  be  deposited,  to  be  distributed  as  ordered  by  the court of claims on application of any person claiming an interest in the amount deposited.   Notwithstanding any other provision of law to the contrary, if such an acquisition  is  being  made  for  a  federally-aided  project  and  the condemnor determines it necessary to deposit the amount of  the  highest appraised  value without delay in order to proceed with the letting of a construction contract  and  to  comply  with  federal  laws,  rules  and regulations,  the  condemnor  may  request  the  comptroller to make the deposit herein provided at any time subsequent to the vesting  of  title in  the state of New York and provided an offer of payment in full or as an advance payment has been made to the owner. The written  approval  of the  attorney  general  shall not be necessary under this paragraph, but the comptroller shall, after making the aforesaid deposit,  transmit  to the  attorney  general a notice in writing approximately identifying the proceeding or project, the map and parcel number or numbers and the name of the depository bank,  together  with  the  date  and  amount  of  the deposit.   After  the  deposit  has  been  made  as herein provided, the attorney general shall notify all parties having or claiming to have an  interest in the fund that the amount payable thereunder has been deposited and is subject  to  an  application  by  an  interested  person or persons to a distribution proceeding. The procedure on such an application  shall  be the  same as provided in section twenty-three of the court of claims act respecting the distribution of deposited court of claims awards,  except that  the  proceeding  shall be conducted in the court of claims, in the district  in  which  the  appropriated  property  is  located  and  such application  shall  be  made  by filing the original and one copy of the verified petition with the chief clerk of the court of claims in Albany, and upon service of a copy of the verified petition  upon  the  attorney general  at  his  office  in  Albany.  The determination of the court of claims, and final judgment of distribution shall, unless  set  aside  or reversed  on  appeal,  be  final and conclusive upon the owners or other persons claiming any interest in or lien or encumbrance on the  property so  appropriated  and  the amount deposited. No judgment of distribution shall be made unless the court shall first obtain personal  jurisdiction over all persons certified by the attorney general as having or claiming to have an interest in the fund.   A  deposit  made  pursuant  to  this  paragraph  shall  terminate  the condemnor's obligation to  pay  interest  on  the  amount  so  deposited provided that interest is paid upon such deposit. No sum paid into court or deposited shall be charged fees, commissions or poundage.   In  the  event  an  offer  is  accepted  subsequent  to a deposit made pursuant to this paragraph and if no application  for  distribution  has been  made,  the  condemnor  shall  request  the comptroller to, and the comptroller shall, without any court order being required, withdraw  the sum  deposited together with all interest accrued thereon, and redeposit the same including interest thereon to the account  from  which  it  was withdrawn  for  the  purpose  of effecting payment by the comptroller as provided by law.  (3) Nothing contained in this section shall, in any  way,  affect  the right  of  a  condemnee  who  has  not accepted the condemnor's offer as payment in full from filing a claim in the court of  claims  within  the time limited therefor.   Furthermore,  in  the  event  three years from the date of any deposit made pursuant to this subdivision have elapsed, and no  application  for distribution  as  aforesaid  has been made, the comptroller may, without any court order, withdraw the sum deposited together with  all  interest accrued  thereon  and  redeposit the same in the account from which such  sum  was  withdrawn  for  the  purpose  of  effecting  payment  by   the comptroller as provided by law.  (4)  Notwithstanding  the provisions of paragraphs one and two of this subdivision, the comptroller is authorized, at his discretion,  to  make any  deposits  required  pursuant  to  paragraphs  one  and  two of this subdivision into the eminent domain account created pursuant to  section ninety-seven-dd  of the state finance law. Such deposits may be invested with  other  state  moneys  by  the  comptroller  in  those  obligations specified   in   section   ninety-eight-a  of  the  state  finance  law. Notwithstanding the provisions of section sixteen of the  state  finance law  or  any other general or special law to the contrary, if moneys are deposited by the comptroller in the eminent domain  account  established pursuant  to  section  ninety-seven-dd  of  the  state  finance law, the condemnee shall be entitled to receive interest at the  rate  determined by  the  comptroller  based  on the rate of earnings of such investments during the period of deposit.  (F) At any time subsequent to making the written offer, the amount  of such  offer  may  be  adjusted  or  revised  by the condemnor to reflect correction of error or miscalculation.  (G) The reservation of the right  to  claim  additional  compensation, pursuant  to  paragraph  three of subdivision (A) of this section, shall not extend or affect in any way the time limit for the  filing  of  such claim as provided in section five hundred three of this law.  (H)  When  an  advance  payment  to  a condemnee made pursuant to this section by the condemnor  exceeds  the  award  of  the  court  for  that property,  the  court  shall,  on motion, enter judgment in favor of the condemnor for the amount of such excess and appropriate  interest.  Such motion  shall be made on notice served within thirty days after delivery to the condemnor of the decision of the court making the award.