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SECTION 401
Land; purchase or acquisition
Public Health (PBH) CHAPTER 45, ARTICLE 4, TITLE 1
§ 401. Land; purchase or acquisition. 1. The commissioner, when an
appropriation therefor has been made by the legislature, may acquire any
real property which he may deem necessary for any departmental purpose
by purchase or acquisition pursuant to the eminent domain procedure law.

Title to any such real property shall be taken in the name of and be
vested in the people of the state of New York; provided, however, that
no real property shall be so acquired by purchase unless the title
thereto shall be approved by the attorney general.

2. Whenever real property is to be acquired pursuant to the eminent
domain procedure law the commissioner shall cause to be made by the
state department of transportation an accurate acquisition map as
provided in such law.

3. On the approval of such map by the commissioner, the original
tracing of such map shall be filed in the main office of the department.

4. If the commissioner shall determine, prior to the filing of such
map in the office of the clerk or register of the county, that changes,
alterations or modifications of such map as filed in the main office of
the department should be made, he or she shall, subject to the
provisions of article two of the eminent domain procedure law, if
applicable, direct the preparation by the department of transportation
of an amended map. On the approval of such amended map by the
commissioner, it shall be filed in the main office of the department and
the amended map shall thereupon in all respects and for all purposes
supersede the map previously filed.

5. If the commissioner shall determine, prior to the filing of a copy
of such acquisition map in the office of the county clerk or register as
provided in section four hundred two of the eminent domain procedure
law, that such map should be withdrawn, he or she may file a certificate
of withdrawal in the offices of the department and of the department of
law. Upon the filing of such certificate of withdrawal, the map to which
it refers shall be cancelled and all rights thereunder shall cease and
determine.

6. The commissioner 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 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.

7. 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 shall deem it necessary to cause the removal of an
owner or occupant from any real property so acquired, he may cause such
owner or occupant to be removed therefrom by proceeding in accordance
with section four hundred five of the eminent domain procedure law. The
proceeding shall be brought in the name of the commissioner as agent of
the state and the attorney general shall represent the petitioner in the
proceedings. No execution shall issue for costs, if any, awarded against
the state or the commissioner, but they shall be part of the costs of
the acquisition of the real property and be paid in like manner.
Proceedings may be brought separately against one or more of the owners
or occupants of any such property, or one proceeding may be brought
against all or several of the owners or occupants of any or all such
property within the territorial jurisdiction of the same court, justice
or judge; judgment shall be made 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.

8. Claims for the value of any property acquired and for legal damages
caused by any such acquisition may be adjusted by the commissioner, even
though a claim has been filed with the court of claims, if the amount
thereof can be agreed upon with the owner or owners thereof. If the
amount of a claim cannot be agreed upon, the commissioner shall offer to
the owner or owners the amount determined by the commissioner to be the
value of such claim. Upon the acceptance of such offer the commissioner
shall enter into an agreement with such owner or owners providing for
such payment with interest thereon, if any, as allowed by law and
reserving to such owner or owners the right to file such claim with the
court of claims or if a claim has been filed reserving the right to
prosecute said claim. The reservation of the right to file said claim in
the court of claims shall not extend or affect in any way the time
limited for the filing of such claim as provided for in the court of
claims act. The failure of the owner or owners to file said claim within
the time of filing claims specified by the court of claims act shall be
deemed an acceptance of the amount paid as full settlement of such
claim. If such offer is refused by the owner or owners, or is not
accepted within ninety days after notification by the commissioner of
such offer by registered mail, interest on the amount of the claim so
offered shall be suspended from the date of such refusal or the
expiration of such ninety days, whichever is earlier, to the date of the
entry of judgment in the court of claims. If such offer is refused or is
not accepted within said ninety days the offer shall be deemed withdrawn
and may be revived only at the discretion of the commissioner. Upon
making any agreement provided for in section three hundred four of the
eminent domain procedure law, the commissioner shall deliver to the
comptroller such agreement and a certificate stating the amount due such
owner or owners thereunder on account of such acquisition of his or
their property and the amounts so fixed shall be paid out of the state
treasury after audit by the comptroller from moneys appropriated for the
acquisition of such real property, but not until there shall have been
filed with the comptroller a certificate of the attorney general showing
the person or persons claiming the amounts so agreed upon to be legally
entitled thereto.

9. Application for reimbursement of incidental expenses as provided in
section seven hundred two of the eminent domain procedure law shall be
made to the commissioner upon forms prescribed by him and shall be
accompanied by such information and evidence as the commissioner may
require. Upon approval of such application, the commissioner 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 the state treasury after audit by the comptroller from monies
appropriated for the acquisition of property under this section.

10. The commissioner, with the approval of the director of the budget,
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 commissioner; 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 commissioner 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
commissioner 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
commissioner 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 commissioner upon forms prescribed by him and shall be
accompanied by such information and evidence as the commissioner may
require. Upon approval of such application, the commissioner 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.

11. Authorization is hereby given to the commissioner 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 him. The
commissioner, with the approval of the director of the budget, 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 commissioner 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 remainder 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 commissioner.
Application for payment under this subdivision shall be made to the
commissioner upon forms prescribed by him and shall be accompanied by
such information and evidence as the commissioner may require. Upon
approval of such application, the commissioner 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.

12. The owner of any real property so acquired may present to the
court of claims, pursuant to section five hundred three of the eminent
domain procedure law, a claim for the value of such property acquired
and for legal damages caused by such acquisition, as provided by law for
the filing of claims with the court of claims. Awards and judgments of
the court of claims shall be paid in the same manner as awards and
judgments of that court for the acquisition of lands generally and shall
be paid out of the state treasury after audit by the comptroller from
moneys appropriated for the acquisition of such real property.

14. If the commissioner shall determine subsequent to the acquisition
of a temporary easement in any real property that the purposes for which
such easement right was acquired have been accomplished and that the
exercise of such easement is no longer necessary, he shall make his
certificate that the exercise of such easement is no longer necessary
and that such easement right is therefore terminated, released and
extinguished. The commissioner shall cause such certificate to be filed
in the office of the department of state and upon such filing all rights
acquired by the state in such property shall cease and determine. The
commissioner shall cause a certified copy of such certificate as so
filed in the office of the department of state to be mailed to the owner
of the property affected, as certified by the attorney general, if the
place of residence of such owner is known or can be ascertained by a
reasonable effort and such commissioner shall cause a further certified
copy of such certificate to be filed in the office of the recording
officer of each county in which the property affected or any part
thereof is situated. On the filing of such certified copy of such
certificate with such recording officer, it shall be his duty to record
the same in his office in the books used for recording deeds and to
index the same against the name of the people of the state of New York
as grantor.

15. Notwithstanding any other provision of this section, the
commissioner 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
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 departmental purposes would result in substantial
consequential damages to the owner's remaining property, due to loss of
access, severance or control of access, the commissioner of
transportation, for and in 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.