N.Y. Canal Law § 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aforesaid, that such map should be withdrawn, the corporation shall file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.