N.Y. Eminent Domain Procedure Law § 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.