NY Canal L § 40 (2021)
2021 New York Laws CAL - Canal Article 5 - Acquisition of Property for the Canal System 40 - Acquisition of Property.

§  40.  Acquisition  of  property.  1.  The  acquisition  of  property necessary for purposes of the improvement,  use,  maintenance,  control, management  or  repair  of  the  canal  system, shall be pursuant to the provisions of the eminent domain procedure law by the corporation or  by the commissioner of transportation at the request of the corporation.   2.  The  commissioner of transportation or the corporation as the case may be, shall cause to be prepared an accurate acquisition  map  of  any property  which  he or it may deem necessary for purposes connected with the canal system or of any property in and to which he or  it  may  deem the  acquisition  or  exercise  of  an easement, interest or right to be necessary for such purposes, indicating and describing in each case  the particular  easement,  interest or right. On the approval of such map by the commissioner of transportation or the corporation as  the  case  may be, he or it shall acquire such property, easements, interests or rights pursuant to the provisions of the eminent domain procedure law.   3.  If  the  corporation  shall determine, prior to the filing of such copy of the map in the  office  of  the  county  clerk  or  register  as aforesaid,  that  changes,  alterations  or modifications of such map as filed in the  main  office  of  the  corporation  should  be  made,  the corporation  shall,  subject  to  the  provisions  of article two of the eminent domain procedure law, if applicable, direct the  preparation  of an  amended  map,  either by preparing a new map or by making changes on the original tracing of  such  map,  with  a  notation  indicating  such changes.  On  the  approval  of  such amended map by the corporation, it shall be filed in the main office of the corporation in the same  manner as  the  original  map was filed, and the amended map shall thereupon in all respects and for all purposes supersede the map previously filed.   4. If the corporation shall determine, prior to  the  filing  of  such copy  of  the  map  in  the  office  of  the county clerk or register as aforesaid, that such map should be withdrawn, the corporation shall file a certificate of withdrawal  in  the  offices  of  the  corporation  and department  of  law.  Upon the filing of such certificate of withdrawal, the map to which it refers shall be canceled and all  rights  thereunder shall cease and terminate.   5.  The  commissioner of transportation or the corporation as the case may be, shall deliver to the attorney general a copy of such acquisition map whereupon it shall be the duty of the attorney general to advise and certify to the commissioner of transportation  or  the  corporation  the names  of  the  owners  of  the property, easements, interests or rights described in the said acquisition  map,  including  the  owners  of  any right, title or interest therein pursuant to the requirements of section four hundred three of the eminent domain procedure law.   6. If, at or after the vesting of title to such property in the people of the state of New York as provided for in the eminent domain procedure law,  the  commissioner of transportation or the corporation as the case may be shall deem it necessary to cause the removal of an owner or other occupant from such property it may cause such owner or other occupant to be removed therefrom by  proceeding  in  accordance  with  section  four hundred  five of the eminent domain procedure law. The proceedings shall be brought in the name of the  commissioner  of  transportation  or  the corporation as agent of the state. If any person proceeded against shall contest  the  petition  by  an  answer,  the  attorney  general shall be notified, and he  thereafter  shall  represent  the  petitioner  in  the proceedings.  No execution shall issue for costs, if any awarded against the state, the commissioner of transportation or  the  corporation,  but they  shall  be part of the costs of the acquisition and be paid in like manner. Proceedings may be brought separately against one or more of the owners or other occupants of  a  property,  or  one  proceeding  may  be  brought  against  all or several of the owners or other occupants of any or all property within the territorial jurisdiction of the same  justice or  judge;  and judgment shall be given for immediate removal of persons defaulting  in appearance or in answering, or withdrawing their answers, if any, without awaiting the trial  or  decision  of  issues  raised  by contestants, if any.   7.  Upon  making  any  agreement provided for in section three hundred four  of  the  eminent  domain  procedure  law,  the   commissioner   of transportation  or  the  corporation as the case may be shall deliver to the comptroller such agreement and a certificate stating the amount  due such  owner or owners thereunder on account of such appropriation of his or their property and the amounts so fixed shall be paid pursuant to all relevant provisions of the public authorities law,  the  eminent  domain procedure law and the state finance law.   8. Application for reimbursement of incidental expenses as provided in section  seven  hundred two of the eminent domain procedure law shall be made to the corporation upon forms prescribed  by  the  corporation  and shall be accompanied by such information and evidence as the corporation may  require.  Upon  approval of such application, the corporation shall deliver a copy thereof, to the comptroller together with  a  certificate stating  the  amount  due thereof, and the amount so fixed shall be paid out of funds available  for  the  acquisition  of  property  under  this section.   9.  The  corporation  shall  establish and may from time to time amend rules and regulations authorizing the payment of actual  reasonable  and necessary  moving expenses of occupants of property acquired pursuant to this section; of actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but  not exceeding  an  amount  equal  to the reasonable expenses that would have been  required  to  relocate  such  property,  as  determined   by   the corporation;   and   actual  reasonable  expenses  in  searching  for  a replacement business or farm; or  in  hardship  cases  for  the  advance payment  of such expenses and losses. For the purposes of making payment of such expenses and losses only the term "business"  means  any  lawful activity  conducted  primarily  for  assisting  in  the  purchase, sale, resale, manufacture, processing or marketing of  products,  commodities, personal  property  or  services  by  the erection and maintenance of an outdoor advertising display or displays, whether or not such display  or displays  are  located  on  the  premises  on  which  any  of  the above activities are conducted. Such rules and regulations may further  define the  terms  used  in this subdivision. In lieu of such actual reasonable and necessary moving expenses, any such displaced  owner  or  tenant  of residential  property  may  elect  to accept a moving expense allowance, plus a dislocation allowance, determined in accordance with  a  schedule prepared  by  the  corporation  and  made  a  part  of  such  rules  and regulations. In lieu of such  actual  reasonable  and  necessary  moving expenses,  any such displaced owner or tenant of commercial property who relocates or discontinues his business or farm operation  may  elect  to accept  a  fixed  relocation  payment  in an amount equal to the average annual net earnings of the business or farm operation, except that  such payment  shall  be  not  less than two thousand five hundred dollars nor more than ten thousand dollars. In the case of a business, no such fixed relocation payment shall  be  made  unless  the  corporation  finds  and determines  that  the business cannot be relocated without a substantial loss of its existing patronage, and that the business is not part  of  a commercial  enterprise having at least one other establishment, which is not being acquired by the state or the United States, which  is  engaged in  the  same or similar business. In the case of a business which is to  be discontinued but for which the findings and determinations set  forth above  cannot  be  made, the corporation may prepare an estimate of what the actual reasonable and necessary moving expenses,  exclusive  of  any storage charges, would be if the business were to be relocated and enter into  an agreed settlement with the owner of such business for an amount not to exceed such estimate  in  lieu  of  such  actual  reasonable  and necessary   moving   expenses.   Application   for  payment  under  this subdivision shall be made to the corporation upon forms prescribed by it and shall be  accompanied  by  such  information  and  evidence  as  the corporation   may  require.  Upon  approval  of  such  application,  the corporation shall deliver a copy thereof  to  the  comptroller  together with  a certificate stating the amount due thereunder, and the amount so fixed shall be paid out  of  the  state  treasury  after  audit  by  the comptroller  from  moneys  appropriated  for the acquisition of property under this section. As used in this  subdivision  the  term  "commercial property"  shall  include  property  owned  by  an  individual,  family, partnership, corporation, association or a  nonprofit  organization  and includes  a  farm  operation.  As  used  in  this  subdivision  the term "business" means any lawful activity, except a farm operation, conducted primarily for the purchase, sale, lease and rental of personal and  real property,  and for the manufacture, processing or marketing of products, commodities, or any other personal property; for the sale of services to the public; or by a nonprofit organization.   10. Authorization is hereby given for the reimbursement to the  person or  other  entity entitled thereto, as determined by the corporation, of an amount, separately computed and stated,  representing  the  following incidental  expenses  to the owner of property acquired pursuant to this section:  (a) Any recording fees, transfer taxes and other similar  expenses  in connection  with the acquisition of the property by the state, including the corporation, or in connection with the transfer of the  property  to the state, including the corporation; and  (b)  Any  penalty costs, incurred by the owner of property acquired by the state, including the corporation, for prepayment of any pre-existing recorded mortgage entered into in good faith encumbering such property.   In the event that there shall be  a  final  judgment  by  a  court  of competent  jurisdiction  that  the commissioner of transportation or the corporation as the case may be, was not legally  authorized  to  acquire property,  or  a  portion of such property, pursuant to this section; or the commissioner or the corporation denies that there was any taking  of property,  makes  no  offer  to  settle  the value of the claim for such property and there shall be a final judgment by  a  court  of  competent jurisdiction  that  the commissioner or the corporation did in fact take such property; or the procedure to acquire such property is abandoned by the commissioner or the corporation; authorization is hereby  given  for the  reimbursement  to  the  person or other entity entitled thereto, as determined by  the  commissioner  or  the  corporation,  of  an  amount, separately  computed and stated, for reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred  by  such  person  or  other  entity  because  of  the acquisition procedure.   Application  for  either  of  such reimbursements shall be made to the corporation upon forms prescribed by it and shall be accompanied by such information and evidence as the corporation may require.  Upon  approval of such application, the corporation shall deliver a copy thereof to the comptroller   together   with  a  certificate  stating  the  amount  due thereunder, and the amount so fixed shall be paid out of funds available for this purpose.    11.  Authorization  is  hereby  given  to  the  corporation  to   make supplemental  relocation  payments,  separately  computed and stated, to displaced owners and tenants of residential property  acquired  pursuant to  this  section  who  are  entitled  thereto,  as  determined  by such corporation.  The  corporation may establish and from time to time amend rules  and  regulations  providing  for  such  supplemental   relocation payments.  Such  rules and regulations may further define the terms used in this subdivision. In the case of property acquired pursuant  to  this section  which  is improved by a dwelling actually owned and occupied by the  displaced  owner  for  not  less  than  one  hundred  eighty   days immediately  prior  to initiation of negotiations for the acquisition of such property, such payment to  such  owner  shall  not  exceed  fifteen thousand  dollars. Such payment shall be the amount, if any, which, when added to the acquisition payment equals the average  price,  established by  the  corporation  on a class, group or individual basis, required to obtain a comparable  replacement  dwelling  that  is  decent,  safe  and sanitary  to  accommodate  the displaced owner, reasonably accessible to public services and places of employment and available  on  the  private market, but in no event shall such payment exceed the difference between acquisition  payment  and  the  actual purchase price of the replacement dwelling. Such payment shall include an  amount  which  will  compensate such  displaced owner for any increased interest costs which such person is required to pay for financing the acquisition of any such  comparable replacement  dwelling.  Such  amount  shall be paid only if the dwelling acquired pursuant to this section was encumbered by a bona fide mortgage which was a valid lien on such dwelling for not less  than  one  hundred eighty  days prior to the initiation of negotiations for the acquisition of such dwelling. Such amount shall  be  equal  to  the  excess  in  the aggregate  interest  and  other debt service costs of that amount of the principal of the mortgage on the replacement dwelling which is equal  to the  unpaid  balance  of the mortgage on the acquired dwelling, over the remaining term of the mortgage on  the  acquired  dwelling,  reduced  to discounted  present  value.  The  discount  rate shall be the prevailing interest rate paid on  savings  deposits  by  commercial  banks  in  the general  area  in  which  the  replacement dwelling is located. Any such mortgage  interest  differential  payment  shall,  notwithstanding   the provisions  of  section twenty-six-b of the general construction law, be in lieu of and in full satisfaction of the requirements of such section. Such  payment  shall  include  reasonable  expenses  incurred  by   such displaced  owner for evidence of title, recording fees and other closing costs incident to the purchase of  the  replacement  dwelling,  but  not including  prepaid  expenses.  Such  payment  shall  be  made  only to a displaced owner who purchases and occupies a replacement dwelling  which is  decent,  safe and sanitary within one year subsequent to the date on which he is required to move from the dwelling acquired pursuant to this section or the date on which he receives from the state final payment of all costs of the  acquired  dwelling,  whichever  occurs  later,  except advance  payment  of  such  amount may be made in hardship cases. In the case of property  acquired  pursuant  to  this  section  from  which  an individual  or  family,  not  otherwise  eligible  to  receive a payment pursuant to the above provisions of this subdivision, is displaced  from any  dwelling  thereon  which has been actually and lawfully occupied by such individual or family for not  less  than  ninety  days  immediately prior  to  the  initiation  of  negotiations for the acquisition of such property, such payment to such individual or  family  shall  not  exceed four  thousand  dollars.  Such  payment  shall  be  the  amount which is necessary to enable such individual or family to lease  or  rent  for  a period not to exceed four years, a decent, safe and sanitary dwelling of  standards adequate to accommodate such individual or family in areas not generally  less  desirable  in regard to public utilities and public and commercial  facilities  and  reasonably  accessible  to  his  place   of employment,  but  shall not exceed four thousand dollars, or to make the down payment, including reasonable expenses incurred by such  individual or family for evidence of title, recording fees, and other closing costs incident  to the purchase of the replacement dwelling, but not including prepaid expenses, on  the  purchase  of  a  decent,  safe  and  sanitary dwelling  of standards adequate to accommodate such individual or family in areas not generally less desirable in regard to public utilities  and public  and  commercial  facilities,  but shall not exceed four thousand dollars, except if such amount exceeds two thousand dollars, such person must equally match any such amount in excess of two thousand dollars, in making the down payment. Such payments may be made  in  installments  as determined  by  the  corporation.  Application  for  payment  under this subdivision shall be made to the corporation upon  forms  prescribed  by such  corporation  and  shall  be  accompanied  by  such information and evidence  as  the  corporation  may  require.  Upon  approval  of   such application,  the  corporation  shall  deliver  a  copy  thereof  to the comptroller,  together  with  a  certificate  stating  the  amount   due thereunder, and the amount so fixed shall be paid out of funds available for such purpose.   12.  The  owner  of  any  property,  easements,  interests  or  rights appropriated, may present to the court of claims a claim for  the  value of  such  property appropriated and for legal damages as provided by law for the filing of claims with the  court  of  claims.  Payment  of  such awards  and judgments of the court of claims shall be made in the manner now prescribed by law.   13. If the work of improvement, maintenance,  control,  management  or repair  of  the  canal  system causes damage to property not acquired as above provided, the state shall be liable therefor, but  this  provision shall  not  be  deemed  to  create any liability not already existing by statute. Claims for such damage may be adjusted by the  corporation,  if the  amounts  thereof  can  be  agreed upon with the persons making such claims, and any amount so agreed upon shall be paid as  a  part  of  the cost  of such improvement, maintenance, control, management or repair as prescribed by this section. If the amount  of  any  such  claim  is  not agreed  upon, such claim may be presented pursuant to the eminent domain procedure law to the court of claims which is hereby authorized to  hear such claim and determine if the amount of such claim or any part thereof is a legal claim against the state, and, if it so determines, to make an award  and  enter judgment thereon against the state, provided, however, that such claim is filed with the court of  claims  within  three  years after the accrual of such claim.   14.   Notwithstanding   any  other  provision  of  this  section,  the corporation or the commissioner of transportation at the request of  the corporation shall have the power to acquire by grant or purchase, in the name  of  the  people of the state of New York, any property which he or the corporation deems necessary for any of the purposes provided for  in this  section, and payment therefor, if any, shall be made in the manner prescribed in this section for the  payment  of  adjusted  appropriation claims,  provided,  however,  that no real property shall be so acquired unless the title thereto shall be approved by the attorney general.   15. The expense of the acquisition of property, including the cost  of making  surveys,  preparing  descriptions  and  maps  of  property to be acquired, and of administrative duties in connection therewith,  serving notices  of appropriation, publication, making appraisals and agreements and of searches ordered and examinations and readings  and  approval  of  titles  made  by  the  attorney  general,  and  expenses incurred by the corporation or the commissioner of transportation at the request of  the corporation  and  attorney  general  in  proceedings  for the removal of owners  or occupants, shall be deemed a part of the cost of operation of the respective offices where  such  employees  are  engaged  or  of  the department  having  charge of such matters and shall be paid from moneys appropriated for the operation of such offices. If a  special  fund  has been  set  up  to  provide  for  the  acquisition of property, then such expense involved may be made payable from such fund.   16. Notwithstanding the provisions of any general,  special  or  local law,  the  corporation  or  the  commissioner  of  transportation at the request of the corporation, his or its officers, agents  or  contractors when  engaged  on  work connected with the canal system, as described in subdivision one of this section, may, pursuant to the provisions of  the eminent domain procedure law, enter upon any property for the purpose of making  surveys,  test  pits,  test borings, or other investigations and also for temporary occupancy during construction. Claims for any  damage caused by such entry, work or occupation not exceeding two thousand five hundred  dollars  may be adjusted by agreement by the corporation or the commissioner of transportation at the request of  the  corporation  with the  owner  of  the  property  affected  as  determined  by  him or such corporation  by  reasonable  investigation  without  appropriating  such property. Upon making any such adjustment and agreement, the corporation or  the  commissioner of transportation shall deliver to the comptroller such agreement and a certificate stating the amount due such  owner  and the  amount  so  fixed shall be paid out of the funds available for such purpose.   17. If the corporation shall determine subsequent to  the  acquisition of  a  temporary easement right in property and subsequent to the filing of a description and map of such property in the office  of  the  county clerk  or  register,  as  aforesaid,  that  the  purposes for which such easement right was acquired have been accomplished and that the use  and occupancy  of  said property for canal purposes are no longer necessary, and that, therefore,  the  term  of  such  easement  should  be  further limited,  or if the appropriation of such easement was for an indefinite period, that such period should be fixed and  determined,  or  that  the period  of such easement has by its terms expired, the corporation shall make its certificate that the use and occupancy  of  such  property  for canal  purposes are no longer necessary, that the property in which such easement right was acquired is surrendered back to the affected owner of said property and that such  easement  right  is  thereupon  terminated, released  and  extinguished.  The corporation shall cause a copy of such certificate to be filed in the office of the department of  state.  Upon the  filing of such certificate in the office of the department of state all rights acquired by the  state  in  such  property  shall  cease  and determine.  The  corporation  shall  cause  a  copy  of such certificate together with notice  of  the  filing  thereof  in  the  office  of  the department  of state to be mailed to the owner or owners of the property affected, as  certified  by  the  attorney  general,  if  the  place  of residence  of  such  owner or owners is known or can be ascertained by a reasonable effort. A further copy of  such  certificate  and  notice  of filing  shall  be  filed  in the office of the recording officer of each county wherein the property affected is situated. On the filing of  such certificate  and  notice  with such officer it shall be the duty of such officer to record same in the books used  for  recording  deeds  in  the office of such officer.   18.   Notwithstanding   any  other  provision  of  this  section,  the corporation shall have the power to acquire by grant or purchase, in the  name of the people of the state of New York, any property which it deems necessary for any of the purposes provided for in this section  and  may also  acquire  for  such  purposes  from  the  Palisades interstate park commission,  in  the  name  of the people of the state of New York, such lands and such easements, licenses, permits and other rights over  lands as the said commission is authorized to grant, sell, exchange or convey. When  the  acquisition  by  appropriation, grant or purchase of property deemed  necessary  for  canal  purposes  would  result  in   substantial consequential  damages to the owner's remaining property, due to loss of access, severance or control of access,  the  corporation,  for  and  on behalf  of  the people of the state of New York, may acquire by purchase or grant  all  or  any  portion  of  such  remaining  property.  Payment therefor, if any, shall be made in the manner prescribed in this section for  the  payment  of  adjusted appropriation claims, provided, however, that no real property shall be so  acquired  unless  the  title  thereto shall be approved by the attorney general.