N.Y. Surrogate's Court Procedure Act § 1508: Authority to release claims against the state by reason of appropriation of trust property not subject to power of sale 1

§ 1508. Authority to release claims against the state by reason of

appropriation of trust property not subject to power of sale

1. The surrogate of any county having jurisdiction of the trust may,

by order, authorize any testamentary trustee to release a claim against

the state for compensation on account of the appropriation by the state

of any real property or any right, interest or easement therein

belonging to the trust, and for legal damages caused by the

appropriation and for damages sustained by any entry upon, use or

occupation of, or injury to the real property by the state prior to

completion of the appropriation.

2. Application for the order may be entertained by the court in all

cases where the will does not contain a valid power of sale with regard

to such property or a sale is not authorized under the provisions of

EPTL 11-1.1.

3. Notice of the application shall be given to such persons and in

such manner as directed by the court. Prior to the application and

irrespective of when the appropriation was effected, the trustee may

enter into an agreement with the state, subject to the approval of the

court, for the payment of such compensation, a copy of which agreement

shall be presented to the court together with the petition.

4. Upon consideration by the court of the petition, the allegations

and proofs of the parties and upon the testimony of the petitioner and

of at least 2 disinterested persons acquainted with the facts, presented

orally or by affidavit, as to the value of the interest of the trust in

the property so appropriated, including the legal damage caused by the

appropriation and the damages, if any, sustained by the entry upon, use

or occupation of, or injury to the real property by the state prior to

completion of appropriation and upon inquiring into the facts and

circumstances, if it shall appear to the satisfaction of the court that

the amount of compensation offered by the state represents the fair

market value of the property appropriated and just compensation for the

legal damages caused by the appropriation and the damages, if any,

sustained by the entry upon, use or occupation of or injury to the

property by the state prior to completion of appropriation, the court

may by order confirm the agreement and authorize and direct the trustee

to execute and deliver to the state a release of such claim and any

documents or instruments required by the state to give full effect to

the release, for the amount of consideration so offered by the state for

such release in full payment of such claim for compensation for the use

and benefit of the trust.

5. The order made pursuant to this section and the release and

attendant documents and instruments executed and delivered in conformity

therewith shall be binding and conclusive on the remainders and

reversions as well as the immediate or future trust interests in the

real property so held under the trust and shall bind and be conclusive

against all persons under disability as defined in this act and persons

not in being and all other persons having estates or interests vested or

contingent, for life or in trust, or in reversion or remainder in the

trust property or in the proceeds of the appropriation thereof by the

state.