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This entry was published on 2014-09-22
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Application to compensation arising out of appropriation of real property by the state
Real Property Actions & Proceedings (RPA) CHAPTER 81, ARTICLE 16
§ 1616. Application to compensation arising out of appropriation of
real property by the state. 1. The procedure authorized by sections 1601
through 1614 as to a sale of real property, covering all created
interests as mentioned therein and qualified in section 1615, shall, so
far as practicable, apply also to an application concerning payment of
compensation arising out of any appropriation by the state of real
property or of any interest therein, for public purpose, in the same
manner that such procedure would apply, but for such appropriation, to
an application thereunder for an order directing that the real property
in question, or a part thereof, be sold.

2. For the purpose, however, of the relief sought under the provisions
of this section, all references in this and in any of the above
enumerated sections to a trustee or a trust shall be construed as
relating only to a trust estate created by an instrument other than a
will and under which the trustee has no valid power of sale over the
subject property. Where, however, a valid power of sale is given the
trustee under such instrument, he is hereby authorized to execute the
transaction in the same manner a testamentary trustee may do under
section two hundred fifty-c of the surrogate's court act, and which
execution, including all releases given thereunder by such
nontestamentary trustee, shall in similar scope be binding and
conclusive on all persons and interests as covered thereby in said last
mentioned section.

3. In the case of any such appropriation where relief is sought under
this section, the relevant proof to be taken and the hearing and
examination to be had before final order under the provisions of section
1609 shall be as to whether the compensation offered by the state, or
any agency or department thereof, by way of a provisionally executed
agreement of adjustment or otherwise, for the total value of such
appropriated property or interest and of all legal damages caused by
such appropriation, represents the fair market value of such property or
interest and just compensation therefor and for all legal damages caused
by such appropriation, including the damages, if any, sustained by the
entry upon, use or occupation of, or injury to, said property by the
state prior to completion of appropriation. If the court is satisfied as
to the adequacy of said offer, it shall, in the final order in the
proceeding, authorize the applicant if acting as trustee, and, if not,
then a referee to be appointed thereunder to execute the authorized
transaction, to enter into or adopt any such agreement of adjustment
with, and in form submitted by, the state or any agency or department
thereof for the total compensation so offered; and on report under oath
to the court by such trustee or referee of any such agreement of
adjustment so undertaken by either of them, if it appears to the court
to conform in all particulars to the final order authorizing the
transaction, an order shall be made approving and confirming such
agreement of adjustment and directing such trustee or referee, upon
consummation thereof, in behalf of all persons in interest as to the
property affected by said appropriation, or as to the proceeds to be
derived therefrom in said transaction, who shall have become bound by
said proceeding under the provisions of section 1614 to execute and
deliver to the state and/or any agency or department thereof, a release
of all claims on the part of such persons in interest with respect to
the total compensation offered as aforementioned, together with any and
all other documents and instruments which may be required by the state
or any agency or department thereof to give full effect to such release,
and which release and attendant documents and instruments shall, upon
such execution and delivery thereof, become and remain binding and
conclusive on all of the aforesaid persons in interest.

4. Said order of confirmation shall, in the discretion of the court,
provide for payment out of said total compensation of reasonable
disbursements and of such allowances as to the court may seem proper, in
the manner and respectively to the participants and persons mentioned in
section 1613, and shall also authorize said trustee or referee to
receive the net proceeds therefrom after such payment and to apply,
safeguard, manage and distribute said remaining fund as directed in said
order of confirmation and in accordance with the relevant provisions of
section 1613.