N.Y.
Eminent Domain Procedure Law Section 402
Filing of acquisition maps
- vesting
(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 2 (Determination of the Need and Location of a Public Project Prior to Acquisition)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 Public Service Law § 120 (Definitions)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.(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.
Source:
Section 402 — Filing of acquisition maps; vesting, https://www.nysenate.gov/legislation/laws/EDP/402 (updated Sep. 27, 2019; accessed Apr. 20, 2024).
