NY-EDP Eminent Domain Procedure Law NY

Purpose. It is the purpose of this law to provide the exclusive

procedure by which property shall be acquired by exercise of the power

of eminent domain in New York state; to assure that just compensation

shall be paid to those persons whose property rights are acquired by the

exercise of the power of eminent domain; to establish opportunity for

public participation in the planning of public projects necessitating

the exercise of eminent domain; to give due regard to the need to

acquire property for public use as well as the legitimate interests of

private property owners, local communities and the quality of the

environment, and to that end to promote and facilitate recognition and

careful consideration of those interests; to encourage settlement of

claims for just compensation and expedite payments to property owners;

to establish rules to reduce litigation, and to ensure equal treatment

to all property owners.

Short title. This chapter shall be known as the eminent domain

procedure law and may be cited as "EDPL".

Definitions. As used in this law:

(A) "Acquisition" means the act of vesting of title, right or interest

to, real property for a public use, benefit or purpose, by virtue of the

condemnor's exercise of the power of eminent domain.

(B) "Acquisition map" means the representation of the real property

acquired by either a delineation of the perimeter of the particular

project covering the acquisition; together with a description of the

project's perimeter boundaries and of the estate, right or interest in

and to such property so acquired or an individual property map

representing the estate, right or interest in and to such property so

acquired.

(B-1) "Assessment record billing owner" means the owner, last known

owner, or reputed owner, at such person's tax billing address, of each

parcel or portion thereof, of real property which may be acquired by the

condemnor for such public project, as shown on the assessment records of

the political subdivision in which such parcel or portion thereof is

located, as this information, in its most current form, may be obtained

from and ascertained by the assessor of each such political subdivision.

(C) "Condemnee" means the holder of any right, title, interest, lien,

charge or encumbrance in real property subject to an acquisition or

proposed acquisition.

(D) "Condemnor" means any entity vested with the power of eminent

domain.

(E) "Person" means any individual, partnership, corporation,

association, trust, or legal entity.

(F) "Real property" includes all land and improvements, lands under

water, waterfront property, the water of any lake, pond or stream, all

easements and hereditaments, corporeal or incorporeal, and every estate,

interest and right, legal or equitable, in lands or water, and right,

interest, privilege, easement and franchise relating to the same,

including terms for years and liens by way of mortgage or otherwise.

(G) "Public project" means any program or project for which

acquisition of property may be required for a public use, benefit or

purpose.

Applicability. The eminent domain procedure law shall be

uniformly applied to any and all acquisitions by eminent domain of real

property within the state of New York.

Public hearings. Except as provided herein, prior to

acquisition, the condemnor, in order to inform the public and to review

the public use to be served by a proposed public project and the impact

on the environment and residents of the locality where such project will

be constructed, shall conduct a public hearing in accordance with the

provisions of this article at a location reasonably proximate to the

property which may be acquired for such project.

Notice. (A) Where a public hearing is required by this article

the condemnor shall give notice to the public of the purpose, time and

location of its hearing setting forth the proposed location of the

public project including any proposed alternate locations, at least ten

but no more than thirty days prior to such public hearing by causing

such notice to be published in at least five successive issues of an

official daily newspaper if there is one designated in the locality

where the project will be situated and in at least five successive

issues of a daily newspaper of general circulation in such locality. If

the official newspaper is one of general circulation in such locality,

publication therein as specified shall be deemed sufficient compliance.

(B) In the event that the only newspaper available in such locality is

a weekly publication the above described notice shall be published in

such newspaper in at least two successive issues.

(C) (1) The condemnor shall serve, either by personal service or

certified mail, return receipt requested, a notice of the purpose, time,

date, and location of a public hearing required by this article to each

assessment record billing owner or his or her attorney of record.

(2) Such notice shall be served at least ten but no more than thirty

days prior to such public hearing. Such notice shall clearly state that

those property owners who may subsequently wish to challenge

condemnation of their property via judicial review may do so only on the

basis of issues, facts, and objections raised at such hearing.

(D) Inadvertent failure to notify a person or persons entitled to

notice under this section shall not be jurisdictional nor construed to

affect the validity of any title acquired by a condemnor under this law.

Conduct of the public hearing. At the public hearing the

condemnor shall outline the purpose, proposed location or alternate

locations of the public project and any other information it considers

pertinent, including maps and property descriptions of the property to

be acquired and adjacent parcels. Thereafter, any person in attendance

shall be given a reasonable opportunity to present an oral or written

statement and to submit other documents concerning the proposed public

project. A record of the hearing shall be kept, including written

statements submitted. Copies of such record shall be available to the

public for examination without cost during normal business hours at the

condemnor's principal office and the office of the clerk or register of

the county in which the property proposed to be acquired is located.

Copies shall be reproduced upon written request and payment of the cost

thereof. Further adjourned hearings may be scheduled.

Determination and findings. (A) The condemnor, within ninety

days after the conclusion of the public hearings held pursuant to this

article, shall make its determination and findings concerning the

proposed public project and shall publish a brief synopsis of such

determination and findings in at least two successive issues of an

official newspaper if there is one designated in the locality where the

project will be situated and in at least two successive issues of a

newspaper of general circulation in such locality. If the official

newspaper is one of general circulation in such locality, publication

therein as specified shall be deemed sufficient compliance. The synopsis

shall include those factors set forth in subdivision (B) herein, and

shall also state that copies of the determination and findings will be

forwarded upon written request without cost.

(B) The condemnor, in its determination and findings, shall specify,

but shall not be limited to the following:

(1) the public use, benefit or purpose to be served by the proposed

public project;

(2) the approximate location for the proposed public project and the

reasons for the selection of that location;

(3) the general effect of the proposed project on the environment and

residents of the locality;

(4) such other factors as it considers relevant.

(C) Upon making the determination and findings, the condemnor shall

serve, by personal service or certified mail, return receipt requested,

a notice of the brief synopsis thereof upon each assessment record

billing owner or his or her attorney of record whose property may be

acquired. Such notice shall: (1) include the information required by

paragraph two of subdivision (B) of this section; (2) state that copies

of the determination and findings will be forwarded to such individuals

upon written request and without cost; (3) inform such individual that,

under section two hundred seven of this article, there are thirty days

from the completion of the condemnor's newspaper publication requirement

to seek judicial review of the condemnor's determination and findings;

and (4) inform such individual that, under sections two hundred seven

and two hundred eight of this article, the exclusive venue for judicial

review of the condemnor's determination and findings is the appellate

division of the supreme court in the judicial department where any part

of the property to be condemned is located.

Amendments for field conditions. Subsequent to publishing its

determination and findings and only in the event that further study of

field conditions warrant, the condemnor shall have the right to make

amendments or alterations in its proposed public project to accommodate

such field conditions. Such amendments or alterations shall not require

further public hearings nor invalidate any acquisition for the proposed

public project.

Exemptions. The condemnor shall be exempt from compliance with

the provisions of this article when:

(A) pursuant to other state, federal, or local law or regulation it

considers and submits factors similar to those enumerated in subdivision

(B) of section two hundred four, to a state, federal or local

governmental agency, board or commission before proceeding with the

acquisition and obtains a license, a permit, a certificate of public

convenience or necessity or other similar approval from such agency,

board, or commission or;

* (B) pursuant to article VII of the public service law it obtained a

certificate of environmental compatibility and public need or pursuant

to article VIII of the public service law it obtained a siting permit

with respect to a major electric transmission facility or;

* NB Effective until December 31, 2040

* (B) pursuant to article VII or article VIII of the public service

law it obtained a certificate of environmental compatibility and public

need or;

* NB Effective December 31, 2040

(C) pursuant to other law or regulation it undergoes or conducts or

offers to conduct prior to an acquisition one or more public hearings

upon notice to the public and owners of property to be acquired, and

provided further that factors similar to those enumerated in subdivision

(B) of section two hundred four herein may be considered at such public

hearings, or;

(D) when in the opinion of the condemnor the acquisition is de minimis

in nature so that the public interest will not be prejudiced by the

construction of the project or because of an emergency situation the

public interest will be endangered by any delay caused by the public

hearing requirement in this article.

(E) when it complies with the procedures contained in section 41.34 of

the mental hygiene law.

Judicial review. (A) Any person or persons jointly or

severally, aggrieved by the condemnor's determination and findings made

pursuant to section two hundred four of this article, may seek judicial

review thereof by the appellate division of the supreme court, in the

judicial department embracing the county wherein the proposed facility

is located by the filing of a petition in such court within thirty days

after the condemnor's completion of its publication of its determination

and findings pursuant to section two hundred four herein. Such petition

shall be accompanied by proof of service of a demand on the condemnor to

file with said court a copy of a written transcript of the record of the

proceeding before it, and a copy of its determination and findings. Upon

receipt of such petition and demand, the condemnor shall forthwith

deliver to the court a copy of the record and a copy of its

determination and findings. The proceeding shall be heard on the record

without requirement of reproduction. If such proposed public improvement

is located in more than one judicial department such proceeding may be

brought in any one, but only one of such departments and all such

proceedings with relation to any single public project shall be

consolidated with that first filed.

(B) The jurisdiction of the appellate division of the supreme court

shall be exclusive and its judgment and order shall be final subject to

review by the court of appeals in the same manner and form and with the

same effect as provided for appeals in a special proceeding. All such

proceedings shall be heard and determined by the appellate division of

the supreme court, and by the court of appeals, as expeditiously as

possible and with lawful preference over other matters.

(C) The court shall either confirm or reject the condemnor's

determination and findings. The scope of review shall be limited to

whether:

(1) the proceeding was in conformity with the federal and state

constitutions,

(2) the proposed acquisition is within the condemnor's statutory

jurisdiction or authority,

(3) the condemnor's determination and findings were made in accordance

with procedures set forth in this article and with article eight of the

environmental conservation law, and

(4) a public use, benefit or purpose will be served by the proposed

acquisition.

Jurisdiction of courts. Except as expressly set forth in

section two hundred seven, and except for review by the court of appeals

of an order or judgment of the appellate division of the supreme court

as provided for therein, no court of this state shall have jurisdiction

to hear and determine any matter, case or controversy concerning any

matter which was or could have been determined in a proceeding under

this article.

Policy. The condemnor, at all stages prior to or subsequent to

an acquisition by eminent domain of real property necessary for a

proposed public project shall make every reasonable and expeditious

effort to justly compensate persons for such real property by

negotiation and agreement.

Appraisals; prevesting discovery. Real property to be acquired

by the exercise of the power of eminent domain shall be appraised on

behalf of the condemnor by an appraiser. In order to adequately prepare

such appraisal upon which the condemnor's offer is based, the condemnor

shall have the right to inspect such property prior to vesting. The

owner, his agents or employees, tenants or other occupants shall upon

reasonable notice by a written request by the condemnor, provide

pertinent data or information including books and records necessary to

prepare such appraisal. A party affected by such request may, where the

request for such information is objected to as unreasonable or

burdensome, petition a court of competent jurisdiction for relief.

Failure of the owner to comply with this section shall suspend the

condemnor's obligation to make an offer to such owner pursuant to

article three until such time as this information is provided.

Offer. The condemnor shall establish an amount which it

believes to represent just compensation for the real property to be

acquired. The condemnor shall make a written offer to acquire the

property for one hundred per centum of the valuation so established. In

no event shall such amount be less than the condemnor's highest approved

appraisal. Wherever practicable, the condemnor shall make the offer

prior to acquiring the property and shall also wherever practicable,

include within the offer an itemization of the total direct, the total

severance or consequential damages and benefits as each may apply to the

property.

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.

Use and occupancy. (A) A condemnee, tenant or other person

holding, using or occupying property acquired pursuant to this chapter,

shall be liable to the condemnor for the fair and reasonable value of

such holding, use or occupancy from the date of acquisition to the date

the property is vacated and possession surrendered to the condemnor.

Provided, however, that in the event the property at the time of

acquisition is occupied by the former owner for residential purposes,

the liability of such former owner for the fair and reasonable value of

such residential holding shall not commence until ninety days after the

date of acquisition or until the date on which the property ceases to be

occupied by the former owner for residential purposes, whichever occurs

first.

(B) The amount of the fair and reasonable value for such temporary use

and occupancy established by the condemnor shall be paid to the

condemnor at reasonable intervals; any amount due and payable may be

retained by the condemnor from any unpaid damage or consideration to be

paid by it to such condemnee, tenant or other person for the property or

interest therein acquired from him. Either party may bring an action and

make application to a court of competent jurisdiction to establish the

fair and reasonable amount of money due for such holding, use or

occupancy of the property, in the event the value established by the

condemnor is unacceptable. The condemnor may enforce any judgment

ensuing from such actions according to the applicable provisions of law.

(C) Where a condemnee, tenant or other person holding, using or

occupying property acquired pursuant to this chapter is entitled to an

award for the acquisition of the property by the condemnor, any unpaid

portion of the sum fixed for use and occupancy either by agreement,

expressed or implied, or by court action to establish the same, shall be

a lien against such award, or payment by agreement, subject only to

liens of record at the time of the vesting of title in the condemnor and

liens under section four hundred seventy-five of the judiciary law.

Time for acquisition. (A) The condemnor may commence

proceedings under this article to acquire the property necessary for the

proposed public project up to three years after conclusion of the later

of:

(1) publication of its determination and findings pursuant to section

two hundred four, or

(2) the date of the order or completion of the procedure that

constitutes the basis of exemption under section two hundred six, or

(3) entry of the final order or judgment on judicial review pursuant

to section two hundred seven of this chapter.

(B) If the condemnor has not commenced the proceedings under this

article to acquire the property prior to the expiration of such three

year period the project shall be deemed abandoned, and thereafter,

before commencing proceedings under this article the condemnor must

again comply with the provisions of article two; provided, however, that

the preceding shall not operate to bar the acquisition of property for

which title cannot be certified by the state attorney general or

appropriate legal officer or attorney of the condemnor in acquisition

pursuant to subdivision (B) of section five hundred one of this chapter

within such three year period. Such property shall be acquired

thereafter as soon as practicable.

(C) In the event property is to be acquired for a public project in

stages, the condemnor after conducting a required public hearing for the

entire project need not conduct additional hearings for subsequent

stages, provided that proceedings under this article with respect to the

property necessary for the first stage were commenced within such three

year period and provided further, that all proceedings under this

article with respect to property for the project are commenced within

ten years from the dates hereinabove set forth in paragraphs one, two

and three of subdivision (A).

(D) In the event additional property must be acquired after the three

year period, because of field conditions, such acquisition shall be made

as soon as practicable.

Filing of acquisition maps; vesting. (A) In all acquisitions

under the court of claims jurisdiction provided in subdivision (A) of

section five hundred one herein, prior to acquiring property, the state

of New York, within the time prescribed by section four hundred one of

this law, shall:

(1) file in the main office of the agency, department, or authority or

public benefit corporation for which the acquisition is being made, the

original tracing of the acquisition map or a microfilm or computer

digitized copy of the original acquisition map of any real property

which it deems necessary for purposes connected with a proposed public

project, indicating and describing in each instance the particular

easement, interest or right, in the real property that is acquired

including metes and bounds or section, block and lot numbers; and

(2) notify condemnees by first class mail that the condemning party is

now taking steps to acquire such property, thereupon, subject to the

provisions of this law, the people of the state of New York, their

officers and agents may immediately enter upon and take possession of

the real property so described for any and all purposes connected with

the proposed public project; and

(3) file a certified copy of such acquisition map in the office of the

county clerk or register of each county in which such property or any

portion thereof is situated, and thereupon, the acquisition of the

property by the state, described in such map shall be deemed complete

and title to such property shall be vested in the state.

(4) if the condemnor deems it necessary to acquire immediately any

property which is in the bed or beds of any streams, lakes, streets,

roads, highways, or rights of way for purposes connected with the

proposed public project, it shall cause to be prepared an accurate

description and map of such property, indicating and describing in each

case the particular easement, interest or right. On the approval of such

description and map by the condemnor, it may proceed to vest title in

such property, easements, interests or rights by acquisition in the

manner hereinafter provided. Such description and the original tracing

of such map or a microfilm or computer digitized copy of the original

tracing shall be filed in the office of the condemnor. On the filing of

such description and map in the office of the condemnor, the people of

the state, their officers and agents, may immediately enter upon and

take possession of the property so described for any and all purposes

connected with the proposed public project. A certified copy of such

description and map shall be filed by the condemnor in the office of the

county clerk or register of each county in which such property is

situated and thereupon the acquisition by the state of the property

described in such description and map shall be deemed complete, and the

title to such property shall vest in the people of the state.

Upon the completion of the filing in the office of the county clerk or

register as aforesaid, the condemnor shall cause a notice of such filing

of the description and map, together with a description of such

property, to be published at least once in a newspaper published and

having general circulation in each county where such property is

situated. Claims for the value of the property acquired and for legal

damages caused by any such acquisition may be adjusted by the condemnor

in the manner provided by law notwithstanding that a claim has been

filed with the court of claims, and in all cases where claims for such

damages have been agreed upon or an award has been made by the court of

claims, the claimant shall submit to the attorney general such proof of

title to the property so acquired as shall be satisfactory to the

attorney general. All other statutory provisions relating to claims on

account of such acquisition shall apply to claims which may arise under

this subdivision with the same force and effect.

(B) In all acquisitions under supreme court jurisdiction provided in

subdivision (B) of section five hundred one herein, the condemnor, prior

to filing an acquisition map within the time prescribed by section four

hundred one, shall obtain an order to acquire such property and for

permission to file such map by presentation of a verified petition to

the supreme court in the judicial district where the real property to be

acquired or any part thereof, is situated, in accordance with the

following procedure:

(1) The condemnor shall cause to be filed in the office of the clerk

of each county where the real property to be acquired or any part

thereof is situated, a notice of the pendency of such proceeding. Such

notice shall briefly state the object of the proceeding and shall

contain a general description by metes and bounds or by section, block

and lot number of the real property to be acquired thereby. It shall

also state the names of such of the reputed condemnees of such real

property as may be known to the condemnor, and in case any of the

condemnees are unknown, a statement to that effect shall be made in such

notice.

(2) The condemnor shall, at least twenty days prior to the return date

of the petition, serve a notice of the time, place and object of the

proceeding upon the owner of record of the property to be acquired, as

the same appears from the record of the office in which the acquisition

map is to be filed. Said notice shall contain a copy of that portion of

the proposed acquisition map affecting the owner's property. Service

shall be made pursuant to the civil practice law and rules or by

registered or certified mail, return receipt requested. If service is

made by mail it shall be sent to the last known address of the owner,

and the following provisions shall also apply:

(a) At least ten but not more than thirty days before the return date

of the application, the condemnor shall also cause a copy of a diagram

or representation of the acquisition map showing the perimeters to be

acquired and a notice generally describing the property to be acquired

by metes and bounds or by section, block and lot numbers, to be

advertised by publishing in at least ten successive issues of an

official newspaper if there is one designated in the locality where the

property is situated, and in at least ten successive issues of a

newspaper of general circulation in such locality. If the official

newspaper is one of general circulation in such locality, publication

therein as specified shall be deemed sufficient compliance. In the event

that the only newspaper available in such locality is a weekly

publication the above described notice shall be published in such

newspaper in at least three successive issues. Where the condemnor has

conducted an article two public hearing or when the condemnor is exempt

from compliance with article two pursuant to section two hundred six the

condemnor may dispense with the requirement of publication in ten

successive issues of a newspaper of general circulation.

(b) Where practicable, the condemnor shall cause copies of such notice

in the form of handbills to be posted for the same period in at least

three conspicuous places, upon or near such real property. The

inadvertent failure to notify any condemnee, whether of record or not,

will not invalidate any proceedings brought hereunder or any title

acquired by the condemnor under this law.

(3) The condemnor shall present to the court a petition verified by an

authorized officer of the condemnor setting forth:

(a) a statement providing either the compliance with the requirements

of article two of this law, including a copy of the condemnor's

determination and findings or a statement providing the basis of

exemption from article two;

(b) a copy of the proposed acquisition map to be filed and the names

and places of residence of the condemnees of the property to be

acquired;

(c) a description of the real property to be acquired and its

location, either by metes and bounds of each individual parcel, or

section, block and lot number, and by reference to the acquisition map

and notice of pendency attached to the petition;

(d) the public use, benefit or purpose for which the property is

required;

(e) a request that the court direct entry of an order authorizing the

filing of the acquisition map in the office of the appropriate county

clerk or register and that upon such filing, title shall vest in the

condemnor;

(f) if a non-governmental condemnor subject to the jurisdiction,

supervision and regulation of the public service commission or the

commissioner of transportation, it shall include in its petition for

acquisition, notice that it shall deposit a bond or undertaking with the

clerk of the court prior to vesting of title to the real property

described in such petition in an amount to be fixed by the court on the

return date of the petition. The court shall direct that the bond or

undertaking will be applied in the amount necessary, for any default by

the condemnor in the payment of all or part of the damages determined in

the acquisition proceeding or the abandonment thereof.

The requirement for a bond or undertaking under this subdivision, may

be waived by stipulation of the parties. If the amount deposited is

insufficient to pay such damages and all costs and expenses awarded to a

condemnee, judgment shall be entered against the condemnor for the

deficiency, to be enforced and collected in the same manner as a

judgment in the supreme court;

* (g) if the property is to be used for the construction of a major

utility transmission facility, as defined in section one hundred twenty

of the public service law with respect to which a certificate of

environmental compatibility and public need has been issued under such

law, a statement that such certificate relating to such property has

been issued and is in force, or if the property is to be used for the

construction of a major electric transmission facility, as defined under

article VIII of the public service law, with respect to which a major

electric transmission facility siting permit has been issued under such

law, a statement that such permit relating to such property has been

issued and is in force.

* NB Effective until December 31, 2040

* (g) if the property is to be used for the construction of a major

utility transmission facility, as defined in section one hundred twenty

of the public service law, or major steam electric generating facility

as defined in section one hundred forty of such law with respect to

which a certificate of environmental compatibility and public need has

been issued under such law, a statement that such certificate relating

to such property has been issued and is in force.

* NB Effective December 31, 2040

(4) Upon the presentation of the petition and notice with proof of

service thereof, a condemnee may appear and interpose a verified answer,

which must contain specific denial of each material allegation of the

petition controverted by him, or of any knowledge or information

thereof, sufficient to form a belief, or a statement of new matter

constituting a defense to the proceeding.

(5) At the time and place mentioned in such notice, unless the court

shall adjourn the application to a subsequent date, and in that event at

the time and place to which the same may be adjourned, upon due proof of

service of notice and upon filing of such petition and proof to its

satisfaction that the procedural requirements of this law have been met,

the court shall direct the immediate filing and entry of the order

granting the petition, which order the condemnor shall file and enter

together with the acquisition map and the bond or undertaking if

required, in the office of the county clerk or register in each county

in which the real property or any part thereof is situated. Upon the

filing of the order and the acquisition map, the acquisition of the

property in such map shall be complete and title to such property shall

then be vested in the condemnor.

(6) When it appears to the satisfaction of the court at any stage of

the proceedings, that the public interests will be prejudiced by delay,

it may direct that the condemnor be permitted to enter immediately upon

the real property to be taken, and devote it temporarily to the public

use specified in the petition, upon the deposit with the court of a sum

to be fixed by the court upon a notice to the parties of not less than

eight days, and such sum when so fixed and deposited, shall be applied,

so far as it may be necessary for that purpose, to the payment of any

award that may be made with interest thereon from the date of the entry

of the condemnor upon such real property, and the costs and expenses of

the proceeding, and the residue, if any, returned to the condemnor and,

in case the petition should be dismissed, or no award should be made, or

the proceedings should be abandoned by the condemnor, the court shall

direct that the money so deposited, so far as it may be necessary, shall

be applied to the payment of any damages which a condemnee may have

sustained by such entry upon and use of his property, and his costs and

expenses of the proceedings, such damages to be ascertained by the

court, and if the sum so deposited shall be insufficient to pay such

damages, and all costs and expenses awarded to the property owner,

judgment shall be entered against the condemnor for the deficiency, to

be enforced and collected in the same manner as a judgment in supreme

court; and the possession of the property shall be restored.

Names of reputed condemnees. The condemnor shall deliver to its

appropriate legal officer or attorney, (who shall be in acquisitions

pursuant to subdivision (A) of section five hundred one, the state

attorney general) a copy of such acquisition map, whereupon it shall be

the duty of such legal officer or attorney to advise and certify to the

condemnor the names of the reputed condemnees of parcels to be acquired.

Right of entry prior to acquisition. The condemnor, its

officers, agents or contractors when acquiring real property in

accordance with this law, or when engaged in work connected with a

proposed public project, as described in this law, shall have the right

to enter upon any real property for the purpose of making surveys, test

pits and borings, or other investigations, and also for temporary

occupancy during construction. At a reasonable time prior to such entry,

the condemnor shall deliver notice personally or by first class mail, to

the property owner stating the necessity for the entry. The condemnor

shall be liable to the owner for any damages caused by the condemnor as

a result of the entry; but such damages shall not entail duplicate

payment of damages to be compensated for by the condemnor pursuant to

article three of this law. Entry damages, if any, shall not be deemed

an acquisition.

Possession. (A) If the condemnor has a right to possession of

real property as provided for in this law, and the condemnor shall deem

it necessary to cause the removal of a condemnee or other occupant it

may cause such condemnee or other occupant to be removed therefrom and

possession to be delivered to it, pursuant to the procedures of landlord

and tenant law, or by application to the supreme court in which the

proceeding is pending for a writ of assistance for possession or

pursuant to other law, except that no condemnee shall be required to

surrender possession prior to the condemnor's payment to him of its

advance payment or the deposit of such amount in accordance with article

three of this law, unless the condemnee has not complied with section

three hundred two of this law.

(B) No execution shall include costs in a dispossess proceeding.

Proceedings may be brought separately against one or more of the

condemnees or other occupants of a property, or one proceeding may be

brought against all or several of the condemnees or other occupants of

any or all property within the territorial jurisdiction of the court.

Abandonment. (A) If, after an acquisition in fee pursuant to

the provisions of this chapter, the condemnor shall abandon the project

for which the property was acquired, and the property has not been

materially improved, the condemnor shall not dispose of the property or

any portion thereof for private use within ten years of acquisition

without first offering the former fee owner of record at the time of

acquisition a right of first refusal to purchase the property at the

amount of the fair market value of such property at the time of such

offer. In the event that the acquisition was a partial taking in fee,

such offer need not be made unless such former fee owner has title to

the contiguous remainder parcel at the time the condemnor determines to

dispose of the property. A notice of the offer shall be served on the

former fee owner by registered or certified mail return receipt

requested. Such former fee owner shall have sixty days after service of

such notice to serve a written acceptance upon the condemnor.

(B) Where the condemnor has in good faith and with reasonable

diligence attempted to ascertain the identity of persons entitled to

notice under this section and mailed notice to the last known address of

record of those ascertained, the failure to in fact notify those persons

entitled thereto shall not invalidate any subsequent disposition of

property pursuant to this section.

Jurisdiction. (A) The court of claims shall have exclusive

jurisdiction to hear and determine all claims arising from the

acquisition of real property by or in the name of the people of the

state of New York, or when jurisdiction is specifically conferred upon

it by statute.

(B) In all claims arising from the acquisition of real property other

than as provided in subdivision (A) of this section, the supreme court,

held in the judicial district where the real property or any portion

thereof is situated, shall have exclusive jurisdiction to hear and

determine all claims arising from the acquisition of real property and

shall hear such claims without a jury or without referral to a referee

or commissioners.

Service of notice of acquisition. (A) In all acquisitions in

which the court of claims has jurisdiction under subdivision (A) of

section five hundred one, and provided certification pursuant to section

four hundred three of this law has been made, the condemnor, within

ninety days after filing the acquisition map pursuant to subdivision (A)

of section four hundred two of this law, shall serve, either by personal

service or by certified mail, upon each condemnee a notice of

acquisition and a copy of that portion of the acquisition map affecting

the condemnee's property. Thereupon, the condemnor shall:

(1) cause proof of such service to be filed and recorded in the

office of the county clerk or register whose duty it shall be, upon the

filing of the proof of such service, to record the same in the books in

his office used for recording deeds, and to index the same in the deed

index books in his office, listing the names of the persons served as

grantors. The record of the proof of such service shall be presumptive

evidence of due service of such map and notice of acquisition on the

person served. Service of a copy of such map and notice shall not be

required to be made on any condemnee whose claim arising from or growing

out of such acquisition has been adjusted; and

(2) if it is unable to serve a copy of such map and notice of

acquisition, or cause the same to be served upon a condemnee personally

within the state, after making an effort so to do, service in lieu

thereof may be made by the condemnor by causing such map and notice of

acquisition to be filed in the office of the county clerk or register

aforesaid, and by causing such notice to be recorded in said office; and

(3) simultaneously therewith, cause a certificate to be filed and

recorded in said office, which certificate shall state that the

condemnor has been unable to serve a copy of such map and notice of

acquisition, or cause the same to be served upon such condemnee

personally within the state after a reasonable and proper effort to do

so. The certificate shall direct that service be effected by filing and

recording as herein provided. It shall be the duty of such county clerk

or register, upon filing of the notice of acquisition and certificate,

to record the same in the books in his office used for recording deeds,

and to index the same in the deed index books in his office, listing the

person named in such certificate as a grantor. The record of such

notice and certificate shall be presumptive evidence of due service of

such acquisition map and notice of acquisition on the person named in

said certificate.

(B) In all acquisitions in which the supreme court has jurisdiction

under subdivision (B) of section five hundred one, the condemnor, within

thirty days after entry of the order granting the petition vesting

title, shall cause a notice of acquisition to be either served upon each

condemnee or his attorney of record pursuant to the civil practice law

and rules or published in at least ten successive issues of the official

newspaper in the locality where the project will be situated or in at

least ten successive issues of a newspaper of general circulation in

such locality. In the event that the only newspaper available in such

locality is a weekly publication, the above described notice shall be

published in such newspaper in at least three successive issues. In the

event the notice of acquisition is published, a copy of such notice

shall also be mailed by first class mail to each condemnee or his

attorney of record. The notice shall contain a general description of

the real property acquired, and shall also set forth:

(1) the date the order vesting title was entered,

(2) that the acquisition map has been filed,

(3) the office where such order has been entered and where such map

has been filed; and

(4) direct that condemnees of such property shall, on or before a date

therein specified, file a written claim, or notice of appearance

pursuant to section five hundred three herein with the condemnor and the

clerk of the court of the county in which the order has been filed.

Filing and service of claims; notice of appearance. (A) In a

claim for damages arising from the acquisition of real property under

subdivision (A) of section five hundred one herein, a condemnee shall

file within three years after service of the notice of acquisition or

date of vesting, whichever is later, or within such time as is fixed by

order of the court pursuant to sections five hundred five and five

hundred twelve, a claim for damages with the clerk of the court having

jurisdiction of the matter, and a copy of said claim upon such other

official designated in the notice of acquisition to receive such

service. In any acquisition pursuant to subdivision (A) of section five

hundred one service shall be upon the attorney general. The claimant

may, at any time subsequent to the running of the three year period,

receive the amount of the condemnor's offer upon proof of his

entitlement thereto. The failure of a condemnee to file a claim within

such three year period shall be deemed an acceptance of the amount paid

as full settlement of such claim.

(B) In a claim for damages arising from the acquisition of real

property under subdivision (B) of section five hundred one herein, a

condemnee shall, within the time specified by the court, file a written

claim, or notice of appearance with the clerk of the court having

jurisdiction of the matter and a copy of the same shall be served upon

either the condemnor's chief legal officer or upon such other official

designated in the notice of acquisition.

(C) In the event that a claim is made for compensation for fixtures or

for any interest other than the fee in the real property acquired, a

copy of such claim together with a schedule of fixture items, where

applicable, shall also be served by such claimant upon the fee owner of

the real property, and the condemnor's chief legal officer or upon such

other official designated in the notice of acquisition.

Content of claim, or notice of appearance. The claim, or notice

of appearance shall include:

(A) the name and post office address of the condemnee;

(B) reasonable identification by reference to the acquisition map or

otherwise, of the property affected by the acquisition, and the

condemnee's interest therein;

(C) a general statement of the nature and type of damages claimed,

including a schedule of fixture items which comprise part or all of the

damages claimed;

(D) if represented by an attorney, the name of the condemnee's

attorney and his office and post office address and telephone number

subscribed at the end of the claim.

The claims and copies thereof, may be either typewritten, printed, or

photocopies of the original.

Proof of title; conflicting claims. (A) Each condemnor shall

receive proof of title to property acquired together with proof of liens

or encumbrances thereon, prior to trial.

(B) Where a condemnor disputes a condemnee's title or a right to all

or a portion of an award or a prospective award by reason of conflicting

claims of title, or if there is uncertainty as to how such payment

should be apportioned, the court, upon motion of any party, shall

interplead anyone claiming or imputed to have such a conflicting claim

or interest. A party so interpleaded shall be served with the order of

interpleader in a manner ordered by the court. In the case of

acquisitions under the jurisdiction of the court of claims, a party so

served and not otherwise barred from filing a claim shall, within one

hundred twenty days from the date of service, file a claim independently

of the claim to which he has been a party. If the party interpleaded

fails to file a claim independently of the claim to which he has been

made a party, he may not thereafter file such an independent claim.

(C) The court shall determine the compensation due the condemnees as

well as the respective interests and rights of all parties to the award

and the apportionment thereof. The court shall have jurisdiction to

determine all questions relating to title and priority of interests

incident to the acquisition.

Note of issue; statement of readiness. In all acquisitions

under subdivision (B) of section five hundred one, the condemnor after

expiration of the period of time provided pursuant to subdivision (B) of

section five hundred two, shall serve and file a note of issue in

accordance with the applicable provisions of the civil practice law and

rules of the court.

Answer; affirmative defenses. In all acquisitions under

subdivision (A) of section five hundred one the condemnor shall not be

required to interpose an answer or plead affirmative defenses.

Filing of appraisals; reports of other expert witnesses. In all

proceedings hereunder, the respective judicial departments and the court

of claims, shall adopt rules governing the time for filing and exchange

of the written appraisal reports; provided, however, that in a claim for

damages arising from the acquisition of real property under subdivision

(A) of section five hundred one of this chapter, the time within which

the condemnor must file its appraisal shall be computed from the date on

which the attorney general shall have been served in the manner provided

for in section eleven of the court of claims act. Each judicial

department and the court of claims also shall adopt rules requiring at a

reasonable time prior to trial, the filing of supplemental reports,

rebuttal memoranda and all other reports of expected expert witnesses,

intended to be relied upon at the trial, other than the valuation

experts.

Pretrial conferences. Upon the call of the trial calendar the

justice or judge presiding may prepare a pretrial conference calendar of

proceedings. A pretrial conference may be held in each such proceeding.

Each judicial department and the court of claims shall adopt rules

governing the conduct of pretrials.

View. (A) The trial court shall view the property in all

claims, unless waived by stipulation of the parties. The parties to the

suit or claim, may attend the viewing by the court at a time scheduled

by the court.

(B) When the property or improvements acquired are to be removed,

razed or obliterated prior to trial, any party may make a request to the

presiding judge of the court of claims or an administrative justice of

the supreme court of the judicial department in which the property is

located, that a trial judge or justice be assigned to view the subject

premises prior to removal or demolition. When practicable the judge or

justice viewing property shall be assigned to the trial.

Joint or consolidated trials. (A) In proceedings under

subdivision (A) of section five hundred one, two or more acquisition

claims arising from the same project may, at the discretion of the

court, be heard and determined by the court in one trial or proceeding.

When some, but not all claims arising from a single project have been

filed, and the court shall determine that a joint or consolidated trial

is desirable, the court, upon motion of any party, may order that any

condemnee who has not yet done so, file a claim in accordance with the

provisions of this act within one hundred twenty days after service of a

copy of the order. If a condemnee fails to file a claim within the one

hundred twenty day period, his claim shall thereafter be tried upon the

proof presented. Nothing in this section shall extend the period for

filing a claim as provided within section five hundred three of this

law.

(B) In proceedings under subdivision (B) of section five hundred one

the court may conduct all trials relating to a project as a single

proceeding in one or more parts, or may consolidate and order that a

joint trial be had of the claims of any parties filing separate notices

of appearance as the orderly administration of justice shall require.

Decision of the court. The court, after hearing the testimony

and weighing the evidence, shall determine the compensation due the

condemnees for damages as the result of the acquisition. The court's

decision shall be in compliance with section four thousand two hundred

thirteen of the civil practice law and rules.

Judgment. The decision of the court shall direct preparation

and entry of an appropriate judgment.

Interest; suspension. (A) Subject to the provisions of this

chapter, a condemnee shall be entitled to lawful interest from the date

of acquisition to the date of payment. If it is determined that the

condemnor has in fact acquired the property prior to or without the

filing of an acquisition map as provided in section four hundred two of

this law, a condemnee shall be entitled to lawful interest from the date

of such acquisition. Where the condemnor has made an advance payment or

has deposited all or any part of the compensation owing to a condemnee

in an interest bearing account, or in the eminent domain account

established pursuant to section ninety-seven-dd of the state finance

law, the condemnor's obligation to pay interest on the amount so paid or

deposited shall terminate as of the date of such payment or deposit.

(B) In all acquisitions under subdivision (A) of section five hundred

one, unless a condemnee files and serves his claim against the condemnor

for damages arising from the acquisition of his property, within six

months after accrual of such claim, or within six months after personal

service of the notice of acquisition upon the condemnee, whichever is

later, interest shall be suspended; interest so suspended shall

thereafter again commence to accrue upon the date of the filing of such

claim.

(C) If an appeal is taken by the condemnor or the condemnee, the

condemnor shall pay such portion of the award of the court from which

appeal has not been taken upon proof of a condemnee's entitlement

thereto.

(D) Where an appeal has been taken by either a condemnee or the

condemnor or by both from all or part of an award of the court, the

condemnor may deposit in a special interest bearing account all or any

part of the amount directed to be paid in the award other than any

advance payment already made including the amount required to be paid

pursuant to subdivision (C) hereof. Interest on the amount deposited

shall not be allowed from the expiration of twenty days after

notification in writing by the condemnor to the condemnee or his

attorney, that the condemnor is ready and willing to pay said amount

upon proof of entitlement thereto, such as vouchers and instruments. Any

such deposit or payment shall be without prejudice to the rights of the

condemnor or the condemnee on such appeal.

Applicability. (A) When the total compensation demanded by all

condemnees having an interest in a particular property being acquired is

twenty-five thousand dollars or less, exclusive of interest, a condemnee

may, within the time prescribed by section five hundred three of this

law, file a claim with the clerk of the court having jurisdiction over

the acquisition, and a copy of said claim upon the chief legal officer

of the condemnor, or upon such other official designated by the

condemnor to receive such service. This claim shall include a request to

the court to proceed in accordance with this article and describe

briefly the property to which the request relates and set forth the

amount of compensation demanded by the condemnee including a concise

statement of the basis therefor.

(B) The court shall view the property, and shall upon reasonable

notice to the condemnor and the condemnee, meet at a hearing with the

parties or representatives present and proceed in an informal manner to

hear proof concerning the amount of compensation due the condemnee.

Conduct of hearing. At the hearing, a stenographic record shall

be made and the respective parties shall present to the court evidence

to support their positions. The parties need not be represented by an

attorney nor present expert witnesses, nor shall the rules of evidence

apply. The courts shall adopt rules governing the conduct of hearings

under this article.

Court decision. The court shall file its decision with the

clerk of the court. The decision shall direct the clerk of the court to

enter the decision together with an appropriate entry for lawful

interest as the final judgment. The clerk shall serve a copy of the

judgment with notice of entry on the condemnee and the condemnor.

Appeals. Any party to an action pursuant to this article may

appeal on the sole ground that substantial justice has not been

accomplished between the parties according to the rules and principles

of substantive law.

Additional allowance. In instances where the order or award is

substantially in excess of the amount of the condemnor's proof and where

deemed necessary by the court for the condemnee to achieve just and

adequate compensation, the court, upon application, notice and an

opportunity for hearing, may in its discretion, award to the condemnee

an additional amount, separately computed and stated, for actual and

necessary costs, disbursements and expenses, including reasonable

attorney, appraiser and engineer fees actually incurred by such

condemnee. The application shall include affidavits of the condemnee and

all parties that have incurred expenses on the condemnee's behalf,

setting forth inter alia the amount of the expenses incurred.

Incidental expenses. (A) The condemnor shall reimburse a

condemnee an amount separately computed and stated, representing the

following incidental expenses:

(1) any recording fees, transfer taxes and other similar expenses in

connection with the acquisition of the property by the condemnor or in

connection with the transfer of the property to the condemnor; and

(2) any penalty incurred by the condemnee for prepayment of any

preexisting recorded mortgage entered into in good faith, encumbering

such property; and

(3) the pro rata portion of the real property taxes, water rents,

sewer rents, special ad valorem taxes and other charges paid or payable

to a taxing entity which are allocable to a period subsequent to the

date of vesting title or the effective date of possession of such

property in the condemnor, whichever is earlier.

(B) In the event that the procedure to acquire such property is

abandoned by the condemnor, or a court of competent jurisdiction

determines that the condemnor was not legally authorized to acquire the

property, or a portion of such property, the condemnor shall be

obligated to reimburse the condemnee, an amount, separately computed and

stated, for actual and necessary costs, disbursements and expenses,

including reasonable attorney, appraisal and engineering fees, and other

damages actually incurred by such condemnee because of the acquisition

procedure.

(C) In the event that a court of competent jurisdiction determines

that the condemnor did in fact take property after the condemnor denied

that there was any taking of property and made no offer to settle the

claim, the condemnor shall be obligated to reimburse a condemnee an

amount, separately computed and stated, for actual and necessary costs,

disbursements and expenses, including reasonable attorney, appraiser and

engineer fees incurred in establishing the de facto taking.

Application of CPLR. The civil practice law and rules shall

apply to practice and procedure in proceedings under this law except

where other procedure is specifically provided by this law or rules

governing or adopted by the appropriate court.

Severablilty. If any clause, sentence, paragraph, subdivision,

section, or other part of this chapter shall be adjudged by any court of

competent jurisdiction to be invalid, such judgment, decree or order

shall not affect, impair or invalidate the remainder thereof, but shall

be confined in its operation to the clause, sentence, paragraph,

subdivision, section or other part thereof, directly involved in the

controversy in which such judgment, or order shall have been rendered,

and to this end the provisions of each section of this chapter are

hereby declared to be severable.

Applicability with respect to inconsistent laws.

Notwithstanding any inconsistent provisions of law, general or special,

the provisions of this law shall be controlling and on and after the

effective date of this law, any interest in real property subject to

acquisition shall be acquired pursuant to the provisions of this law.

Pending actions and proceedings. No action or proceeding

pending at the time when this chapter takes effect, shall be affected by

any provision of this chapter, and the same may be prosecuted as if this

chapter had not been enacted.

Rules and regulations. Where not expressly provided, each

condemnor in order to effectuate the object, intent and provisions

contained herein, shall have the authority to establish and may from

time to time, amend rules and regulations consistent with the provisions

of this law.

Acquisition of other than real property. Whenever any condemnor

is authorized to acquire for a public use, title to property other than

real property, the acquisition of such property shall be in the manner

and procedure prescribed for the acquisition of real property under this

chapter.

Effective date. This chapter shall take effect July first,

nineteen hundred seventy-eight.