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SECTION 40
Acquisition of property
Canal (CAL) CHAPTER 5, ARTICLE 5
§ 40. Acquisition of property. 1. The acquisition of property
necessary for purposes of the improvement, use, maintenance, control,
management or repair of the canal system, shall be pursuant to the
provisions of the eminent domain procedure law by the corporation or by
the commissioner of transportation at the request of the corporation.

2. The commissioner of transportation or the corporation as the case
may be, shall cause to be prepared an accurate acquisition map of any
property which he or it may deem necessary for purposes connected with
the canal system or of any property in and to which he or it may deem
the acquisition or exercise of an easement, interest or right to be
necessary for such purposes, indicating and describing in each case the
particular easement, interest or right. On the approval of such map by
the commissioner of transportation or the corporation as the case may
be, he or it shall acquire such property, easements, interests or rights
pursuant to the provisions of the eminent domain procedure law.

3. If the corporation shall determine, prior to the filing of such
copy of the map in the office of the county clerk or register as
aforesaid, that changes, alterations or modifications of such map as
filed in the main office of the corporation should be made, the
corporation shall, subject to the provisions of article two of the
eminent domain procedure law, if applicable, direct the preparation of
an amended map, either by preparing a new map or by making changes on
the original tracing of such map, with a notation indicating such
changes. On the approval of such amended map by the corporation, it
shall be filed in the main office of the corporation in the same manner
as the original map was filed, and the amended map shall thereupon in
all respects and for all purposes supersede the map previously filed.

4. If the corporation shall determine, prior to the filing of such
copy of the map in the office of the county clerk or register as
aforesaid, that such map should be withdrawn, the corporation shall file
a certificate of withdrawal in the offices of the corporation and
department of law. Upon the filing of such certificate of withdrawal,
the map to which it refers shall be canceled and all rights thereunder
shall cease and terminate.

5. The commissioner of transportation or the corporation as the case
may be, 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 of transportation or the corporation 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.

6. 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 of transportation or the corporation as the case
may be shall deem it necessary to cause the removal of an owner or other
occupant from such property it may cause such owner or other occupant to
be removed therefrom by proceeding in accordance with section four
hundred five of the eminent domain procedure law. The proceedings shall
be brought in the name of the commissioner of transportation or the
corporation as agent of the state. If any person proceeded against shall
contest the petition by an answer, the attorney general shall be
notified, and he thereafter shall represent the petitioner in the
proceedings. No execution shall issue for costs, if any awarded against
the state, the commissioner of transportation or the corporation, but
they shall be part of the costs of the acquisition and be paid in like
manner. Proceedings may be brought separately against one or more of the
owners or other occupants of a property, or one proceeding may be
brought against all or several of the owners or other occupants of any
or all property within the territorial jurisdiction of the same justice
or judge; and judgment shall be given 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.

7. Upon making any agreement provided for in section three hundred
four of the eminent domain procedure law, the commissioner of
transportation or the corporation as the case may be shall deliver to
the comptroller such agreement and a certificate stating the amount due
such owner or owners thereunder on account of such appropriation of his
or their property and the amounts so fixed shall be paid pursuant to all
relevant provisions of the public authorities law, the eminent domain
procedure law and the state finance law.

8. Application for reimbursement of incidental expenses as provided in
section seven hundred two of the eminent domain procedure law shall be
made to the corporation upon forms prescribed by the corporation and
shall be accompanied by such information and evidence as the corporation
may require. Upon approval of such application, the corporation 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 funds available for the acquisition of property under this
section.

9. The corporation 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
corporation; 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 corporation 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 corporation 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 corporation 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 corporation upon forms prescribed by it
and shall be accompanied by such information and evidence as the
corporation may require. Upon approval of such application, the
corporation 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.

10. Authorization is hereby given for the reimbursement to the person
or other entity entitled thereto, as determined by the corporation, of
an amount, separately computed and stated, representing the following
incidental expenses to the owner of property acquired pursuant to this
section:

(a) Any recording fees, transfer taxes and other similar expenses in
connection with the acquisition of the property by the state, including
the corporation, or in connection with the transfer of the property to
the state, including the corporation; and

(b) Any penalty costs, incurred by the owner of property acquired by
the state, including the corporation, for prepayment of any pre-existing
recorded mortgage entered into in good faith encumbering such property.

In the event that there shall be a final judgment by a court of
competent jurisdiction that the commissioner of transportation or the
corporation as the case may be, was not legally authorized to acquire
property, or a portion of such property, pursuant to this section; or
the commissioner or the corporation denies that there was any taking of
property, makes no offer to settle the value of the claim for such
property and there shall be a final judgment by a court of competent
jurisdiction that the commissioner or the corporation did in fact take
such property; or the procedure to acquire such property is abandoned by
the commissioner or the corporation; authorization is hereby given for
the reimbursement to the person or other entity entitled thereto, as
determined by the commissioner or the corporation, of an amount,
separately computed and stated, for reasonable costs, disbursements and
expenses, including reasonable attorney, appraisal and engineering fees,
actually incurred by such person or other entity because of the
acquisition procedure.

Application for either of such reimbursements shall be made to the
corporation upon forms prescribed by it and shall be accompanied by such
information and evidence as the corporation may require. Upon approval
of such application, the corporation 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 funds available
for this purpose.

11. Authorization is hereby given to the corporation 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 such
corporation. The corporation 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 corporation 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
remaining term of the mortgage on the acquired dwelling, reduced to
discounted present value. The discount rate shall be the prevailing
interest rate paid on savings deposits by commercial banks in the
general area in which the replacement dwelling is located. Any such
mortgage interest differential payment shall, notwithstanding the
provisions of section twenty-six-b of the general construction law, be
in lieu of and in full satisfaction of the requirements of such section.
Such payment shall include reasonable expenses incurred by such
displaced owner for evidence of title, recording fees and other closing
costs incident to the purchase of the replacement dwelling, but not
including prepaid expenses. Such payment shall be made only to a
displaced owner who purchases and occupies a replacement dwelling which
is decent, safe and sanitary within one year subsequent to the date on
which he is required to move from the dwelling acquired pursuant to this
section or the date on which he receives from the state final payment of
all costs of the acquired dwelling, whichever occurs later, except
advance payment of such amount may be made in hardship cases. In the
case of property acquired pursuant to this section from which an
individual or family, not otherwise eligible to receive a payment
pursuant to the above provisions of this subdivision, is displaced from
any dwelling thereon which has been actually and lawfully occupied by
such individual or family for not less than ninety days immediately
prior to the initiation of negotiations for the acquisition of such
property, such payment to such individual or family shall not exceed
four thousand dollars. Such payment shall be the amount which is
necessary to enable such individual or family to lease or rent for a
period not to exceed four years, a decent, safe and sanitary dwelling of
standards adequate to accommodate such individual or family in areas not
generally less desirable in regard to public utilities and public and
commercial facilities and reasonably accessible to his place of
employment, but shall not exceed four thousand dollars, or to make the
down payment, including reasonable expenses incurred by such individual
or family for evidence of title, recording fees, and other closing costs
incident to the purchase of the replacement dwelling, but not including
prepaid expenses, on the purchase of a decent, safe and sanitary
dwelling of standards adequate to accommodate such individual or family
in areas not generally less desirable in regard to public utilities and
public and commercial facilities, but shall not exceed four thousand
dollars, except if such amount exceeds two thousand dollars, such person
must equally match any such amount in excess of two thousand dollars, in
making the down payment. Such payments may be made in installments as
determined by the corporation. Application for payment under this
subdivision shall be made to the corporation upon forms prescribed by
such corporation and shall be accompanied by such information and
evidence as the corporation may require. Upon approval of such
application, the corporation 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 funds available
for such purpose.

12. The owner of any property, easements, interests or rights
appropriated, may present to the court of claims a claim for the value
of such property appropriated and for legal damages as provided by law
for the filing of claims with the court of claims. Payment of such
awards and judgments of the court of claims shall be made in the manner
now prescribed by law.

13. If the work of improvement, maintenance, control, management or
repair of the canal system causes damage to property not acquired as
above provided, the state shall be liable therefor, but this provision
shall not be deemed to create any liability not already existing by
statute. Claims for such damage may be adjusted by the corporation, if
the amounts thereof can be agreed upon with the persons making such
claims, and any amount so agreed upon shall be paid as a part of the
cost of such improvement, maintenance, control, management or repair as
prescribed by this section. If the amount of any such claim is not
agreed upon, such claim may be presented pursuant to the eminent domain
procedure law to the court of claims which is hereby authorized to hear
such claim and determine if the amount of such claim or any part thereof
is a legal claim against the state, and, if it so determines, to make an
award and enter judgment thereon against the state, provided, however,
that such claim is filed with the court of claims within three years
after the accrual of such claim.

14. Notwithstanding any other provision of this section, the
corporation or the commissioner of transportation at the request of the
corporation shall have the power to acquire by grant or purchase, in the
name of the people of the state of New York, any property which he or
the corporation deems necessary for any of the purposes provided for in
this section, and payment therefor, if any, shall be made in the manner
prescribed in this section for the payment of adjusted appropriation
claims, provided, however, that no real property shall be so acquired
unless the title thereto shall be approved by the attorney general.

15. The expense of the acquisition of property, including the cost of
making surveys, preparing descriptions and maps of property to be
acquired, and of administrative duties in connection therewith, serving
notices of appropriation, publication, making appraisals and agreements
and of searches ordered and examinations and readings and approval of
titles made by the attorney general, and expenses incurred by the
corporation or the commissioner of transportation at the request of the
corporation and attorney general in proceedings for the removal of
owners or occupants, shall be deemed a part of the cost of operation of
the respective offices where such employees are engaged or of the
department having charge of such matters and shall be paid from moneys
appropriated for the operation of such offices. If a special fund has
been set up to provide for the acquisition of property, then such
expense involved may be made payable from such fund.

16. Notwithstanding the provisions of any general, special or local
law, the corporation or the commissioner of transportation at the
request of the corporation, his or its officers, agents or contractors
when engaged on work connected with the canal system, as described in
subdivision one of this section, may, pursuant to the provisions of the
eminent domain procedure law, enter upon any property for the purpose of
making surveys, test pits, test borings, or other investigations and
also for temporary occupancy during construction. Claims for any damage
caused by such entry, work or occupation not exceeding two thousand five
hundred dollars may be adjusted by agreement by the corporation or the
commissioner of transportation at the request of the corporation with
the owner of the property affected as determined by him or such
corporation by reasonable investigation without appropriating such
property. Upon making any such adjustment and agreement, the corporation
or the commissioner of transportation shall deliver to the comptroller
such agreement and a certificate stating the amount due such owner and
the amount so fixed shall be paid out of the funds available for such
purpose.

17. If the corporation shall determine subsequent to the acquisition
of a temporary easement right in property and subsequent to the filing
of a description and map of such property in the office of the county
clerk or register, as aforesaid, that the purposes for which such
easement right was acquired have been accomplished and that the use and
occupancy of said property for canal purposes are no longer necessary,
and that, therefore, the term of such easement should be further
limited, or if the appropriation of such easement was for an indefinite
period, that such period should be fixed and determined, or that the
period of such easement has by its terms expired, the corporation shall
make its certificate that the use and occupancy of such property for
canal purposes are no longer necessary, that the property in which such
easement right was acquired is surrendered back to the affected owner of
said property and that such easement right is thereupon terminated,
released and extinguished. The corporation shall cause a copy of such
certificate to be filed in the office of the department of state. Upon
the filing of such certificate in the office of the department of state
all rights acquired by the state in such property shall cease and
determine. The corporation shall cause a copy of such certificate
together with notice of the filing thereof in the office of the
department of state to be mailed to the owner or owners of the property
affected, as certified by the attorney general, if the place of
residence of such owner or owners is known or can be ascertained by a
reasonable effort. A further copy of such certificate and notice of
filing shall be filed in the office of the recording officer of each
county wherein the property affected is situated. On the filing of such
certificate and notice with such officer it shall be the duty of such
officer to record same in the books used for recording deeds in the
office of such officer.

18. Notwithstanding any other provision of this section, the
corporation shall have the power to acquire by grant or purchase, in the
name of the people of the state of New York, any property which it deems
necessary for any of the purposes provided for in this section and may
also acquire for such purposes from the Palisades interstate park
commission, in the name of the people of the state of New York, such
lands and such easements, licenses, permits and other rights over lands
as the said commission is authorized to grant, sell, exchange or convey.
When the acquisition by appropriation, grant or purchase of property
deemed necessary for canal purposes would result in substantial
consequential damages to the owner's remaining property, due to loss of
access, severance or control of access, the corporation, for and on
behalf of the people of the state of New York, may acquire by purchase
or grant all or any portion of such remaining property. Payment
therefor, if any, shall be made in the manner prescribed in this section
for the payment of adjusted appropriation claims, provided, however,
that no real property shall be so acquired unless the title thereto
shall be approved by the attorney general.