304 - Advance payment; actions thereafter. - New York Statutes

§ 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 fivehundred 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 bedeposited, 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 suchsum 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.