2023 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.