N.Y. Mental Hygiene Law § 71.01: Acquisition of real property

§ 71.01 Acquisition of real property.

(a) The head of each office of the department, as defined in section

5.03 of this chapter, when an appropriation therefor has been made by

the legislature, may acquire, for and on behalf of the health and mental

hygiene facilities improvement corporation, any real property which he

may deem necessary for the purpose of a state institution, or for that

office or division of the department of which he is the head, by

purchase or pursuant to the eminent domain procedure law, the title to

which shall be taken in the name of and be vested in the people of the

state of New York; provided, however, that no real property shall be so

acquired by purchase unless the title thereto shall be approved by the

attorney general.

(b) Whenever real property is to be acquired pursuant to the eminent

domain procedure law, the commissioner of mental hygiene shall cause to

be made by the office of general services an accurate acquisition map.

With respect to any real property or any easement to be so acquired for

mental hygiene purposes, the commissioner of mental hygiene may cause

the map, contemplated by this subdivision, and any changes, alterations

or modifications in such map and description contemplated by subdivision

(e) of this section, to be made by the office of general services or,

with the approval of the director of the budget, by a licensed

professional engineer or a licensed land surveyor, and the commissioner

of general services and the commissioner of mental hygiene may each

authorize the health and mental hygiene facilities improvement

corporation to act as agent in making such map.

(c) Whenever real property is to be acquired pursuant to the eminent

domain procedure law, the commissioner of mental hygiene shall cause an

accurate map to be made by the state department of transportation. With

respect to any real property or any easement to be so acquired for

mental hygiene purposes, the commissioner of mental hygiene may cause

the map, contemplated by this subdivision, and any changes, alterations

or modifications in such map and description contemplated by subdivision

(e) of this section, to be made by the state department of

transportation or, with the approval of the director of the budget, by a

licensed professional engineer or a licensed land surveyor, and the

state commissioner of transportation and the commissioner of mental

hygiene may each authorize the mental hygiene facilities improvement

fund to act as agent in making such map.

(d) On the approval of such map by the commissioner, the original

tracing of such map shall be filed in the main office of the department

pursuant to the provisions of the eminent domain procedure law.

(e) If the commissioner shall determine, prior to the filing of such

map, in the office of the clerk or register of the county, that changes,

alterations or modifications of such map as filed in the main office of

the department should be made, he or she shall, subject to the

provisions of article two of the eminent domain procedure law, if

applicable, direct the preparation by the department of transportation

of an amended map. On the approval of such amended map by the

commissioner, it shall be filed in the main office of the department and

the amended map shall thereupon in all respects and for all purposes

supersede the map previously filed.

(f) If the commissioner shall determine prior to the filing of a copy

of such acquisition map in the office of the county clerk or register as

provided in section four hundred two of the eminent domain procedure

law, that such map should be withdrawn, he or she may file a certificate

of withdrawal in the offices of the department and of the department of

law. Upon the filing of such certificate of withdrawal, the map to

which it refers shall be cancelled and all rights thereunder shall cease

and determine.

(g) The commissioner of mental hygiene 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

mental hygiene 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.

(h) 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 mental hygiene shall deem it

necessary to cause the removal of an owner or occupant from any real

property so acquired, he may cause such owner or occupant to be removed

therefrom by proceeding in accordance with section four hundred five of

the eminent domain procedure law. The proceeding shall be brought in

the name of the commissioner of mental hygiene as agent of the state and

the attorney general shall represent the petitioner in the proceedings.

No execution shall issue for costs, if any, awarded against the state or

the commissioner of mental hygiene, but they shall be part of the costs

of the acquisition of the real property and be paid in like manner.

Proceedings may be brought separately against one or more of the owners

or occupants of any such property, or one proceeding may be brought

against all or several of the owners or occupants of any or all such

property within the territorial jurisdiction of the same court, justice

or judge; judgment shall be made 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.

(i) Upon making any agreement provided for in section three hundred

four of the eminent domain procedure law, the commissioner of mental

hygiene 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 out of the state treasury after audit by the

comptroller from moneys appropriated for the acquisition of such real

property, but not until there shall have been filed with the comptroller

a certificate of the attorney general showing the person or persons

claiming the amount so agreed upon to be legally entitled thereto.

(j) Application for reimbursement of incidental expenses as provided

in section seven hundred two of the eminent domain procedure law shall

be made to the commissioner upon forms prescribed by him and shall be

accompanied by such information and evidence as the commissioner may

require. Upon approval of such application, the commissioner 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 the state treasury after audit by the comptroller from monies

appropriated for the acquisition of property under this section.

(k) The commissioner, with the approval of the director of the budget,

shall establish and may amend rules and regulations authorizing the

payment of actual reasonable and necessary moving expenses of occupants

of property acquired pursuant to this section or in hardship cases for

the advance payment of reasonable and necessary moving expenses. 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

commissioner 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, or five thousand dollars, whichever is the

lesser. In the case of a business, no such fixed relocation payment

shall be made unless the commissioner 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. Application for payment under this subdivision shall be made

to the commissioner upon forms prescribed by him and shall be

accompanied by such information and evidence as the commissioner may

require. Upon approval of such application, the commissioner 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 "commercial property" shall include property owned

by an individual, family, business concern (including the operation of a

farm) and a non-profit organization.

(l) Authorization is hereby given to the commissioner 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 him. The

commissioner, with the approval of the director of the budget, may

establish and 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 single,

two-family or three-family dwelling actually owned and occupied by the

owner for not less than one year immediately prior to the initiation of

negotiations for the acquisition of such property, such payment to such

owner shall not exceed five thousand dollars. Such payment shall be the

amount, if any, which, when added to the acquisition payment equals the

average price, established by the commissioner 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.

Such payment shall be made only to a displaced owner who purchases and

occupies a dwelling within one year subsequent to the date on which he

is required to move from the dwelling acquired pursuant to this section,

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 other 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 one thousand

five hundred 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 two years, or to make the down payment on the

purchase of, a decent, safe and sanitary dwelling adequate to

accommodate such individual or family. Application for payment under

this subdivision shall be made to the commissioner upon forms prescribed

by him and shall be accompanied by such information and evidence as the

commissioner may require. Upon approval of such application, the

commissioner 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.

(m) The owner of any real property so acquired may present to the

court of claims, pursuant to section five hundred three of the eminent

domain procedure law a claim for the value of such property acquired and

for legal damages caused by such acquisition, as provided by law for the

filing of claims with the court of claims. Awards and judgments of the

court of claims shall be paid in the same manner as awards and judgments

of that court for the acquisition of lands generally and shall be paid

out of the state treasury after audit by the comptroller from moneys

appropriated for the acquisition of such real property.

(n) If the commissioner of mental hygiene shall determine subsequent

to the acquisition of a temporary easement in any real property that the

purposes for which such easement right was acquired have been

accomplished and that the exercise of such easement is no longer

necessary, he shall make his certificate that the exercise of such

easement is no longer necessary and that such easement right is

therefore terminated, released and extinguished. The commissioner of

mental hygiene shall cause such certificate to be filed in the office of

the department of state and upon such filing all rights acquired by the

state in such property shall cease and determine. The commissioner of

mental hygiene shall cause a certified copy of such certificate as so

filed in the office of the department of state to be mailed to the owner

of the property affected, as certified by the attorney general, if the

place of residence of such owner is known or can be ascertained by a

reasonable effort and such commissioner of mental hygiene shall cause a

further certified copy of such certificate to be filed in the office of

the recording officer of each county in which the property affected or

any part thereof is situated. On the filing of such certified copy of

such certificate with such recording officer, it shall be his duty to

record the same in his office in the books used for recording deeds and

to index the same against the name of the people of the state of New

York as grantor.

(o) If moneys appropriated by the legislature for the acquisition of

any real property under this section are subject to repayment, the

comptroller shall annually certify to the trustees of the health and

mental hygiene facilities improvement corporation on or before May first

in every year, the costs of acquisition of such real property paid

during the preceding state fiscal year and the aggregate costs of

acquisition of such real property paid during all preceding state fiscal

years out of the state treasury from moneys so appropriated.