N.Y. Social Services Law § 40: Real property; purchase or acquisition

§ 40. Real property; 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, in the manner provided in 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 so

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

pursuant to the eminent domain procedure law.

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 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 paragraph three of subdivision (A) of 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withdrawn, he or she may file a certificate of withdrawal in the offices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 occupancy 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. 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 amount 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 accesible 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 subdivision (A) of section five hundred

three of the eminent domain procedure law, a claim for the value of such

property and for other legal damages 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.

13. Expenses incurred in the acquisition of the property, including

the cost of title searches, service and publication of notices, and

expenses incurred in proceedings for the removal of owners or occupants,

shall be deemed to be part of the cost of the acquisition of such real

property and shall be paid accordingly out of any moneys appropriated

for the acquisition of such 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.