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This entry was published on 2014-09-22
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SECTION 304
Advance payment; actions thereafter
Eminent Domain Procedure (EDP) CHAPTER 73, ARTICLE 3
§ 304. 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.