N.Y. Public Health Law § 401: Land; purchase or acquisition

§ 401. Land; purchase or acquisition. 1. The commissioner, when an

appropriation therefor has been made by the legislature, may acquire any

real property which he may deem necessary for any departmental purpose

by purchase or acquisition pursuant to the eminent domain procedure law.

Title to any such real property 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.

2. Whenever real property is to be acquired pursuant to the eminent

domain procedure law the commissioner shall cause to be made by the

state department of transportation an accurate acquisition map as

provided in such law.

3. 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.

4. 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.

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law, that such map should be withdrawn, he or she may file a certificate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

6. The commissioner 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 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.

7. 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 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 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, 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.

8. Claims for the value of any property acquired and for legal damages

caused by any such acquisition may be adjusted by the commissioner, even

though a claim has been filed with the court of claims, if the amount

thereof can be agreed upon with the owner or owners thereof. If the

amount of a claim cannot be agreed upon, the commissioner shall offer to

the owner or owners the amount determined by the commissioner to be the

value of such claim. Upon the acceptance of such offer the commissioner

shall enter into an agreement with such owner or owners providing for

such payment with interest thereon, if any, as allowed by law and

reserving to such owner or owners the right to file such claim with the

court of claims or if a claim has been filed reserving the right to

prosecute said claim. The reservation of the right to file said claim in

the court of claims shall not extend or affect in any way the time

limited for the filing of such claim as provided for in the court of

claims act. The failure of the owner or owners to file said claim within

the time of filing claims specified by the court of claims act shall be

deemed an acceptance of the amount paid as full settlement of such

claim. If such offer is refused by the owner or owners, or is not

accepted within ninety days after notification by the commissioner of

such offer by registered mail, interest on the amount of the claim so

offered shall be suspended from the date of such refusal or the

expiration of such ninety days, whichever is earlier, to the date of the

entry of judgment in the court of claims. If such offer is refused or is

not accepted within said ninety days the offer shall be deemed withdrawn

and may be revived only at the discretion of the commissioner. Upon

making any agreement provided for in section three hundred four of the

eminent domain procedure law, the commissioner shall deliver to the

comptroller such agreement and a certificate stating the amount due such

owner or owners thereunder on account of such acquisition 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 amounts so agreed upon to be legally

entitled thereto.

9. 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.

10. The commissioner, with the approval of the director of the budget,

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 commissioner; 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 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, 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

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. 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

commissioner 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 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 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.

11. 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 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 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,

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 remainder 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 commissioner.

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.

12. 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.

14. If the commissioner 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 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 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 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.

15. Notwithstanding any other provision of this section, the

commissioner 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

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 departmental purposes would result in substantial

consequential damages to the owner's remaining property, due to loss of

access, severance or control of access, the commissioner of

transportation, for and in 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.