Section 5-301
§ 5-301 Definitions. As used in this subchapter unless otherwise
expressly stated, or unless the context or subject matter otherwise
requires, the following terms shall mean:
1. "The court", "the supreme court": A special term of the supreme
court for condemnation proceedings held in the county within the city
and within the judicial district in which real property being acquired
or some part thereof is situated.
2. "Application to condemn": An application to the supreme court to
have the compensation which should justly be made to the respective
owners of the real property proposed to be taken, ascertained and
determined by the court without a jury.
3. "Justice": The justice assigned to hold such court.
4. "Days": Calendar days exclusive of Sundays and full legal holidays.
5. "Owner": A person having an estate, interest or easement in the
real property being acquired or a lien, charge or encumbrance thereon.
6. "Real property": Includes all lands and improvements, lands under
water, waterfront property, the water of any lake, pond or stream, all
easements and hereditaments, corporeal or incorporeal, and every estate,
interest and right, legal or equitable, in lands or water, and right,
interest, privilege, easement and franchise relating to the same,
including terms for years and liens by way of judgment, mortgage or
otherwise.
7. "Street": Includes street, avenue, road, alley, lane, highway,
boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk,
boardwalk and viaduct, and every class of public road, square and place,
except marginal streets and wharves.
8. "Capital project proceeding": A condemnation proceeding pursuant to
the provisions of this chapter for capital project purposes, authorized
pursuant to the charter.
Section 5-302
§ 5-302 Construction. The provisions of this subchapter shall apply to
all capital project proceeding instituted within the city unless the
context or subject-matter otherwise requires, but shall not apply to
street closing proceedings, except as provided in section 5-459 of the
code, nor to proceedings to acquire real property for rapid transit
purposes.
Section 5-303
§ 5-303 Special provisions in proceedings for drainage of land by
means other than sewers. In proceedings for the acquisition of real
property for the drainage of land by means other than sewers, pursuant
to an order of the department of health and mental hygiene, the time or
times for the giving or publication of notices shall be one-half of that
required in this subchapter for other proceedings, provided that any
resultant one-half day shall be deemed a whole day. The time for the
supreme court to hear objections to the tentative decree in any such
drainage proceeding shall be two days.
Section 5-304
§ 5-304 Cession to and purchase by the city of the real property being
acquired. a. An owner of real property, which property the city is
authorized to acquire, may cede the same to the city upon such terms and
conditions, including exemptions from assessments, as the mayor from
time to time may prescribe, provided such real property be free from
encumbrances inconsistent with the title to be acquired.
b. The mayor shall also have power and is hereby authorized to agree
as to the purchase price of any real property selected for acquisition
in a capital project proceeding, or any part thereof, and to purchase
the same for and on behalf of the city. An option to purchase such real
property, granted to the city for a period not to exceed ninety days,
shall not be withdrawn or cancelled during the period named therein.
c. When a conveyance of the real property ceded or purchased shall
have been approved and accepted, the city shall become vested with title
to such real property so conveyed to the same extent and effect as if it
had been acquired for the improvement by a proceeding had for that
purpose.
Section 5-305
§ 5-305 Preparation of maps in capital project proceeding; filing. a.
When a capital project proceeding has been authorized, the agency
submitting the departmental estimate shall cause to be prepared five
similar surveys, diagrams, maps or plans of the real property being
acquired, stating thereon the amount or valuation at which each parcel
of real property to be acquired has been assessed for purposes of
taxation on the city tax rolls for each of the three years preceding the
date of such selection; one of such surveys, diagrams, maps or plans to
be filed in the office of such agency, the second to be filed in the
office of the corporation counsel, the third to be filed in the office
in which instruments affecting real property are required to be recorded
in the county in which such real property is situated, the fourth to be
filed in the office of the department of citywide administrative
services, and the fifth to be filed in the department of design and
construction.
b. It shall be lawful for the duly authorized agents of such agency,
and all persons acting under its authority and by its direction, and in
accordance with the provisions of section four hundred four of the
eminent domain procedure law to enter in the daytime into and upon such
real property which it shall be necessary so to enter, for the purpose
of making such surveys, diagrams, maps or plans, or for the purpose of
making such soundings or borings as such agency may deem necessary.
Section 5-306
§ 5-306 Lis pendens. Upon the authorization by the mayor of a capital
project proceeding, it shall be the duty of the corporation counsel to
file in the office of the clerk of the county where the real property to
be acquired or any part thereof is situated, a notice of the pendency of
such proceeding, according to the provisions of subdivision (B) of
section four hundred two of the eminent domain procedure law.
Section 5-307
§ 5-307 Notice of application to condemn. Upon the filing of the lis
pendens in a capital project proceeding, the corporation counsel for and
on behalf of the city shall promptly proceed to give notice of the
city's intention to apply to the supreme court for permission to condemn
and ascertain damages, as provided in subdivision (B) of section four
hundred two of the eminent domain procedure law.
Section 5-308
§ 5-308 Application to condemn; contents of petition. Upon the
application to condemn, the corporation counsel shall present to the
court a petition signed and verified by him or her, setting forth in
addition to other requirements of the eminent domain procedure law, the
following:
1. The order of the mayor authorizing the proceeding.
2. The amount of valuation at which each parcel of the real property
to be acquired has been assessed for purposes of taxation on the city
tax rolls for each of the three years preceding the date of the
petition. Such assessed valuation, in case only part of an entire plot
in a single ownership is to be acquired, shall be pro-rated according to
the area of the part so to be acquired but shall include the valuation
of all buildings encroaching upon or within the lines of the proposed
improvement.
3. A prayer that the real property described therein be condemned by
such court.
Section 5-309
§ 5-309 Notice to file claims. The corporation counsel, after the
filing of the order granting the application to condemn, shall proceed
in accordance with section four hundred three of the eminent domain
procedure law and provide notice to file claims.
Section 5-310
§ 5-310 Proof of ownership. a. The proof of title to the real property
to be acquired, where the same is undisputed, together with proof of
liens or encumbrances, thereon, shall be submitted by the claimant to
the corporation counsel, or to such assistant as the corporation counsel
shall designate. The corporation counsel shall serve upon all parties or
their attorneys, who have served upon him or her copies of their
verified claims, a notice of the time and place at which the corporation
counsel will receive such proof of title.
b. Where the title of the claimant is disputed it shall be the duty of
the court to determine the ownership of such real property upon the
proof submitted to the court during the trial of the proceeding. The
court shall also have power to determine all questions of title incident
to the trial of the proceeding.
Section 5-311
§ 5-311 Examination before trial of party or witness. A proceeding by
the city to acquire title to real property for a public use or purpose
by condemnation shall be deemed a special proceeding, in which testimony
may be taken by deposition pursuant to the provisions of article
thirty-one of the civil practice law and rules and subject to the
provisions of this section. The pendency of such a proceeding shall
constitute special circumstances which render it proper that the
deposition of any person not an owner be taken pursuant to sections
three thousand one hundred one and three thousand one hundred six of the
civil practice law and rules. Such deposition may be taken upon any
question or issue in the proceeding and for the purpose of obtaining
testimony as to any sale or lease as described in subdivision a of
section 5-314 of this subchapter at the instance of the city or of any
owner or at the direction of the court at any time after the expiration
of the date fixed for filing claims. Any owner desiring to obtain
testimony by deposition shall give at least five days' notice or, if
service is made through the post office, at least eight days' notice to
the corporation counsel and to all other owners or their attorneys who
have duly filed their verified claims. If the corporation counsel shall
desire to obtain testimony by deposition he or she shall give like
notice to all owners or their attorneys who have duly filed and served
on the corporation counsel copies of their verified claims. For the
purpose of any such examination before trial brought on by an owner and
noticed for and held at any office of the corporation counsel in the
borough in which the real property is situated or at such other place as
the corporation counsel shall designate, the corporation counsel shall
at the expense of the city provide proper stenographic service and shall
furnish to the owner bringing on such examination a copy of the
typewritten transcript of such examination, duly certified by the
officer before whom the same was taken. In all other cases, the party
bringing on such examination shall at his or her own cost and expense
provide proper stenographic service and shall furnish to the corporation
counsel two copies of the typewritten transcript of such examination
duly certified by the officer before whom it was taken. The deposition
of a witness need not be subscribed by such witness, if such
subscription shall be waived by the parties appearing upon the witness'
examination. The corporation counsel, at the office address subscribed
by him or her upon the papers in the proceeding, shall from and after
the date of his or her receipt thereof keep on file, available for
inspection by all parties to the proceeding a certified copy of each
deposition in the proceeding.
Section 5-312
§ 5-312 Note of issue of the proceeding. After all parties who have
filed verified claims as provided in section 5-309 of this subchapter,
have proved their title or have failed to do so after being notified by
the corporation counsel of the time and place when and where such proof
of title would be received by him or her, the corporation counsel shall
serve upon all parties or their attorneys who have appeared in the
proceeding a note of issue as provided in section five hundred six of
the eminent domain procedure law. The clerk of the court must thereupon
enter the proceeding upon the proper calendar according to the date of
the entry of the order granting the application to condemn. When the
note of issue has been served and filed, the proceeding must remain on
the calendar until finally disposed of.
Section 5-313
§ 5-313 View by court. It shall be the duty of the justice trying any
such proceeding, to view the real property to be thereby acquired in
accordance with section five hundred ten of the eminent domain procedure
law. Where title to real property being acquired in a proceeding shall
have been vested in the city, and buildings or improvements situated
thereon shall have been removed or destroyed by the city or pursuant to
its authority prior to the trial of the proceeding, and whereby the
justice trying the proceeding is deprived of a view of the buildings or
improvements so removed or destroyed, the fact that the justice has not
had a view thereof shall not preclude the court from receiving on the
trial of the proceeding testimony and evidence, as to the damage
sustained by the claimant by reason of the taking thereof, when offered
on behalf of either the claimant or the city.
Section 5-314
§ 5-314 Trial of proceeding; evidence. a. Upon the trial, evidence of
the price and other terms upon any sale, or of the rent reserved and
other terms upon any lease, relating to any of the property taken or to
be taken or to any other property in the vicinity thereof, shall be
relevant, material and competent, upon the issue of value or damage and
shall be admissible on direct examination if the court shall find the
following:
1. That such sale or lease was made within a reasonable time of the
vesting of title in the city,
2. That it was freely made in good faith in ordinary course of
business, and
3. In case such sale or lease relates to other than property taken,
that it relates to property which is similar to the property taken or to
be taken.
No such evidence, however, shall be admissible as to any sale or
lease, which shall not have been the subject of an examination before
trial either at the instance of the city or of an owner, unless at least
twenty days before the trial the attorney for the party proposing to
offer such evidence shall have served a written notice in respect of
such sale or lease, which notice shall specify the names and addresses
of the parties to the sale or lease, the date of making the same, the
location of the premises, the office, liber and page of the record of
the same, if recorded, and the purchase price or rent reserved and other
material terms, or unless such sale or lease shall have occurred within
twenty days before the trial. Such notice by the corporation counsel
shall be served upon all owners or their attorneys who have appeared in
the proceeding; or if served on behalf of an owner, shall be served upon
the corporation counsel and upon all other owners or their attorneys who
have appeared in the proceeding. The testimony of a witness as to his or
her opinion or estimate of value or damage shall be incompetent, if it
shall appear that such opinion or estimate is based upon a sale or lease
of any of the property taken or to be taken or of any of the property in
the vicinity thereof, which shall not have been the subject of an
examination before trial, unless it shall have been specified in a
notice served as aforesaid or shall have occurred within twenty days
before the trial.
b. Upon the trial, no map or plan of proposed streets, drains or
sewers for the subdivision and improvement of any property, nor any
drawing or other specification of excavation or filling or piling or of
any proposed structure above or under ground deemed necessary or proper
to provide a foundation for a suitable or adequate improvement, or of
any other structure or improvement not existing on the property on the
date that title thereto may vest in the city, nor any oral or written
estimate or cost or expense of constructing the streets, drains or
sewers in conformity with such map or plan, nor any oral or written
estimate of the cost of making such excavation or filling or piling or
of constructing any such other proposed structure or improvement in
conformity with such drawing or other specification thereof, nor any
evidence of value of damage based upon any of the foregoing, shall be
received in evidence, unless the party offering the same in evidence
shall have served upon the adverse party, at least thirty days prior to
the trial, a notice of intention to offer such evidence on the trial and
of the particulars thereof, including a true copy of the map or plan or
drawing and other specifications and estimate of cost or expense to be
so offered in evidence, provided, however, that when offered such
evidence shall be subject to objection upon any legal ground.
c. Upon the trial, no evidence shall be admitted, as against an owner
of real property being acquired, of an offer made by or on behalf of
such owner for the sale of his or her property or any part thereof to
the city, or for the sale or assignment of any right and title to the
award or awards, or any part thereof, to be made for such property or
any part thereof, in the proceeding; nor shall any evidence be received,
as against the city, of any offer made to such owner, by or on its
behalf, for the purchase of such property or any part thereof or for the
purchase of the award or awards or any part thereof, to be made for such
property, or any part thereof, in the proceeding.
Section 5-315
§ 5-315 Maps to be supplied court. a. The agency submitting the
departmental estimate for a capital project shall furnish to the court
such surveys, diagrams, maps and plans as the court shall require, to
enable the court to hear and determine the claims of the owners of the
real property affected by the proceeding. Such surveys, diagrams, maps
and plans shall distinctly indicate by separate numbers, the names of
the claimants to, or of the owners of the respective parcels of real
property to be taken in such proceedings, so far as the same are known,
and shall also specify in figures with sufficient accuracy the
dimensions and bounds of each of such tracts to be taken. The court may
require any agency of the city, if the corporation counsel shall
approve, to furnish such other surveys, diagrams, maps and plans and
such other information as shall aid and assist the court in the trial or
determination of the proceeding.
b. It shall be lawful for the duly authorized agents of the agency
furnishing such surveys, diagrams, maps and plans, and all persons
acting under their or its authority and by their or its direction, to
enter in the daytime into and upon such real property which it shall be
necessary so to enter, for the purpose of making such surveys, diagrams
and maps or plans as such agency shall deem necessary.
Section 5-316
§ 5-316 Clerks to be furnished the court. The corporation counsel and
the comptroller, in a capital project proceeding, shall furnish the
court such necessary clerks and other employees and shall provide such
suitable offices for such clerks and employees as may be required to
enable the court to fully and satisfactorily discharge the duties
imposed by law.
Section 5-317
§ 5-317 Tentative decree; what to contain; where filed. a. The court,
after hearing such testimony and considering such proofs as may be
offered, shall ascertain and estimate the compensation which should
justly be made by the city to the respective owners of the real property
being acquired. The court shall instruct the corporation counsel to
prepare separate tabular abstracts of its estimate of damage.
b. The tabular abstract of the estimated damage shall set forth
separately the amount of loss and damage, the names of the respective
owners of each and every parcel of real property affected thereby as far
as the same shall be ascertained, and a sufficient designation or
description of the respective lots or parcels of real property acquired,
by reference to the numbers of the respective parcels indicated upon the
surveys, diagrams, maps or plans used by the court, or copies thereof,
which, together with all of the affidavits and proofs upon which such
estimates are based, shall accompany or be attached to such tabular
abstracts.
c. The finance department shall furnish to the corporation counsel
sets of the tax maps of the city in duplicate for filing therein and for
convenience of reference thereto in the tabular abstract of estimated
damage. The surveyor of the finance department shall make and furnish
all necessary surveys and corrections of the section maps, necessary to
keep the maps furnished to the corporation counsel as accurate as
practicable.
d. Such tabular abstract or abstracts shall be signed by the justice
trying the proceeding and filed with the clerk of the court in the
county in which the order granting the application to condemn was filed
and when so filed such abstract or abstracts shall constitute the
tentative decree of the court as to awards for damages.
Section 5-318
§ 5-318 Agreements for compensation to be awarded for the removal of
structures from premises being acquired. a. The mayor, prior to the
purchase of the premises being acquired, upon which buildings or parts
of buildings or other structures are erected, or prior to the signing of
the final decree of the court, may agree with the owner or owners
thereof, or any person having a beneficial interest therein, in case
title thereto has not vested in the city:
1. As to the cost and compensation to be allowed and paid to them to
remove such buildings or parts of buildings or other structures, and
2. That such sum or sums shall be the compensation to be awarded by
the court, or allowed for the damage done such buildings or parts of
buildings or other structures by virtue of such proceeding.
Such agreement may also be made as a condition of the sale by the
city, at private sale, of its interest in such buildings or parts of
buildings or other structures, after vesting of title thereto, to the
owner or owners of the award or awards therefor or other persons having
an interest therein.
b. Such buildings or parts of buildings or other structures shall not,
in any case, be relocated or re-erected within the lines of any proposed
street or other public improvement. The mayor shall prescribe such
conditions in the terms of sale, which, if broken, shall entitle the
city to a resale of such property and which shall revest title thereto
in the city.
c. The court shall accept such agreed amounts of compensation for the
removal of buildings or parts of buildings or other structures as the
amounts to be awarded as such compensation and include the same in the
tentative and final decrees.
Section 5-319
§ 5-319 Separate and partial tentative and final decrees. a. The court
upon the authorization of the mayor, may make a separate and partial
tentative decree and a separate and partial final decree embracing the
entire real property being acquired therein, or successive sections or
parcels thereof.
b. Whenever a separate and partial tentative and final decree or
decrees shall have been authorized, the corporation counsel may file in
the office of the county clerk and in the office in which instruments
affecting real property are required to be recorded in the county in
which the order granting the application to condemn is filed, a survey
or map showing the part of the real property being acquired as to which
a separate and partial tentative and final decree has been authorized,
subdivided into parcels corresponding with separate ownerships thereof,
as far as ascertained, and the corporation counsel and the court shall
proceed with the ascertainment and determination of the damages with
relation to the real property shown on such partial damage map in the
same manner as provided for the ascertainment and determination of
damages with relation to the entire real property embraced in the
proceeding.
c. In case a separate and partial final decree or decrees as to
damage, including part of the real property being acquired in the
proceeding, shall have been made or filed therein and the justice who
made and filed the separate and partial final decree or decrees as to
damage shall have died or retired from the bench, or become
incapacitated for any reason, the corporation counsel and the court
shall proceed with the ascertainment and determination of damage with
relation to the remaining real property damaged in the same manner as
provided for the ascertainment and determination of damage with relation
to the entire real property being acquired and shall make a separate and
partial tentative and final decree as to damage as to all the real
property being acquired in the proceeding, which shall not have been
included in prior separate and partial final decrees as to damage. All
provisions of this subchapter relating to tentative and final decrees
shall apply to the separate and partial final decrees as to damage so
made, provided, however, that the provision making it the duty of the
justice to view the property being acquired shall not apply in case the
buildings or improvements on the property or the part thereof being
acquired shall have been removed or destroyed by the city or pursuant to
its authority prior to the time the matter shall have been assigned to
such justice for trial.
Section 5-320
§ 5-320 Notice to file objections; objections; hearings. a. Upon the
filing of the tentative decree the corporation counsel shall give
notice, by advertisement in the City Record, of the filing of such
tentative decree and that the city and all other parties interested in
such proceedings, or in any of the real property affected thereby,
having an objection thereto, shall file such objections, in writing,
duly verified in the manner required by law for the verification of
pleadings in an action, setting forth the real property owned by the
objector, and such objector's post office address, in the office in
which the tentative decree was filed within fifteen days after such
publication in a capital project proceeding. Such notice shall be so
published for a period of ten days in a captial project proceeding.
Similar notice shall be given of the filing of any new, supplemental or
amended tentative decree, and for the filing of objections thereto. The
notice shall further state that the corporation counsel on a date
specified in the notice will apply to the justice who made the tentative
decree to fix a time when he or she will hear the parties objecting
thereto.
b. After the filing of the tentative decree or of any new, or
supplemental, or amended tentative decree, no award for damages shall be
diminished without notice to the owner of the real property affected or
the owner's attorney appearing in the proceeding and an opportunity
given for a hearing in regard thereto before signing the final decree.
c. Every party objecting to the tentative decree or to the new
supplemental or amended tentative decree or such party's attorney,
within the time specified in the notice to file objections, shall serve
on the corporation counsel a copy of such verified objections.
d. Upon the application of the corporation counsel, the justice shall
fix the time when he or she will hear the parties so objecting and
desiring to be heard. At the time so fixed the justice shall hear the
person or persons who have objected to the tentative decree, or to the
new, supplemental or amended tentative decree, and who may then and
there appear, and shall have the power to adjourn from time to time
until all parties who have filed objections and who desire to be heard
shall have been fully heard.
Section 5-321
§ 5-321 Final decree; preparation thereof; what to contain. a. After
considering the objections, if any, and making any corrections or
alterations in the tentative decree as to awards for damage, the justice
trying the proceeding shall give instructions to the corporation counsel
as to the preparation of the final decree. Such decree shall consist of
the tentative decree, altered and corrected in accordance with the
instructions of the justice; of the final awards, as determined by the
court, set opposite the respective damage parcel numbers in a column
headed "final award" in the tabular abstract of awards for damage; of a
statement of the facts conferring upon the court jurisdiction of the
proceeding; and of such other matters as the court shall require to be
set forth. The final decree shall also contain a statement that the
amounts set opposite the respective damage parcel numbers in the column
headed "final awards" in the tabular abstract of awards for damage
constitute and are the just compensation which the respective owners are
entitled to receive from the city. The final decree shall also set forth
the names of the respective owners of the several parcels acquired, but
in all cases where the owners are unknown or not fully known to the
court, it shall be sufficient to set forth and state in general terms in
the decree the respective sums to be allowed and paid to the owners of
the respective parcels for loss and damage without specifying their
names or their estates or interests therein, and in such case the owners
may be specified as unknown.
b. To the final decree shall be attached the surveys, diagrams, maps
or plans referred to in subdivision a of section 5-315 of this
subchapter, duly corrected, when necessary. Such decree shall set forth
the several parcels taken by reference to the numbers of such parcels on
the respective surveys, diagrams, maps or plans, and it shall not be
necessary to describe any parcels acquired by metes and bounds.
c. Should any errors exist in the tentative decree, or in the surveys,
diagrams, maps or plans attached thereto, or should there occur, between
the date of the tentative decree and the time of the signing by the
court of the final decree, any changes in ownership resulting in changes
in the size of area, by subdivision or otherwise, of any of the parcels
of any real property to be acquired, the court may alter and correct the
respective surveys, diagrams, maps or plans to show such changes in such
final decree. At the time of the entry of the final decree, the court
shall direct that the maps furnished to the corporation counsel in the
proceeding shall be revised and altered in agreement with the tax maps
as of the date of the entry of such decree.
Section 5-322
§ 5-322 Filing of final decree as to damage where objections and the
filing of a tentative decree are waived. a. Notwithstanding any other
provision of this subchapter, in any case where the owner of any real
property affected by any proceeding under this subchapter or the owner's
attorney and the corporation counsel enter into an agreement in writing
whereby it is agreed that with respect to the award of damages in
relation to such property, the filing of a tentative decree, the giving
of notice to file objections and the filing and hearing of objections
are waived, the filing of a tentative decree, the giving of such notice
and the hearing of objections in relation to such award shall not be
required.
b. In a capital project proceeding, the court may make a separate and
partial final decree or decrees determining the final awards to any
owners of real property affected by the proceeding who have entered into
such waiver agreements or in whose behalf such agreements have been made
by their attorneys, or where such agreements have been so entered into
by or in behalf of all owners of real property affected by such
proceeding, the court may make a final decree determining the final
awards to such owners. In accordance with the procedure regularly
governing where the provisions of subdivision a of this section are not
applicable, the court may make such separate and partial tentative or
final or other decrees as may be appropriate for the determination of
awards to owners of real property affected by the proceeding who have
not entered into such agreements and in whose behalf such agreements
have not been made by their attorneys.
c. 1. Any separate and partial final decree or final decree
determining final awards to owners of real property by whom or in whose
behalf such waiver agreements have been so entered into shall be
prepared by the corporation counsel in accordance with the instructions
of the justice trying the proceeding, and shall set forth the following:
(a) such awards, as determined by the court, set opposite the
respective damage parcel numbers;
(b) the facts conferring jurisdiction over the proceeding upon the
court and such other matters as the court shall require to be included;
(c) a statement that the amounts set opposite the respective damage
parcel numbers constitute and are just compensation which the respective
owners are entitled to receive from the city; and
(d) the names of the respective owners of the several parcels
acquired, as far as the same shall have been ascertained, but in all
cases where the owners are unknown or not fully known to the court, it
shall be sufficient to set forth and state in general terms in the
decree the respective sums to be allowed and paid to the owners of the
respective parcels for loss and damage, without specifying their names
or their estates or interests therein, and in such case the owners may
be specified as unknown.
2. If any such decree is the first separate and partial final decree
or final decree filed in such proceeding, there shall be attached
thereto the surveys, diagrams, maps or plans referred to in subdivision
a of section 5-315 of this subchapter, duly corrected, when necessary.
Any such decree referred to in this subdivision shall set forth the
several parcels taken by reference to the numbers of such parcels on the
respective surveys, diagrams, maps, or plans, and it shall not be
necessary to describe any parcels acquired by metes and bounds.
Section 5-323
§ 5-323 Final decree; how filed; effect. a. The final decree, together
with all affidavits and proofs upon which the same is based, shall be
filed in the office of the clerk of the county in which the order
granting the application to condemn was filed, and a certified copy of
such decree shall be filed in the office in which instruments affecting
real property are required to be recorded, in every county in which any
part of the real property affected is situated and shall be filed in the
department of citywide administrative services of the city of New York.
b. The final decree, unless set aside or reversed on appeal, shall be
final and conclusive as well upon the city as upon the owners of the
real property mentioned therein, and also upon all other persons
whomsoever.
Section 5-324
§ 5-324 Appeal to appellate division. The city or any party or person
affected by the proceeding and aggrieved by the final decree of the
court therein as to awards may appeal to the appellate division of the
court. An appeal from the final decree of the court must be taken within
thirty days after notice of the filing of such final decree. Except as
herein otherwise provided, such appeal shall be taken and heard in the
manner provided by the civil practice law and rules and the rules and
practice of the court in relation to appeals from orders in special
proceedings, and such appeal shall be heard and determined by such
appellate division upon the merits both as to matters of law and fact.
The determination of the appellate division shall be in the form of an
order. The taking of an appeal by any person or persons shall not
operate to stay the proceedings under this subchapter except as to the
particular parcel of real property with which the appeal is concerned.
The final decree of the court shall be deemed to be final and conclusive
upon all parties and persons affected thereby, who have not appealed.
Such appeal shall be heard upon the evidence taken by the court or such
part or portion thereof as the justice who made the decree may certify,
or the parties to such appeal may agree upon as sufficient to present
the merits of the questions in respect to which such appeal shall be
had. An appeal taken but not prosecuted within six months after the
filing of the notice of appeal, unless the time within which to
prosecute the same shall have been extended by an order of the court,
shall be deemed to have been abandoned and no agreement between the
parties extending the time within which such appeal may be prosecuted
shall vary the provisions hereof. When a final decree of the court shall
be reversed on appeal, such reversal shall not divest the city of title
to the real property affected by the appeal.
Section 5-325
§ 5-325 Appeal to court of appeals. An appeal to the court of appeals
may be taken by the city or any person or party interested in the
proceeding and aggrieved by the order of the appellate division. Such
appeal shall be taken and heard in the manner provided by the civil
practice law and rules and the rules and practice of the court of
appeals in relation to appeals from orders in special proceedings. An
appeal taken but not prosecuted within six months after the filing of
the notice of appeal, unless the time within which to prosecute the same
shall have been extended by an order of the court, shall be deemed to be
abandoned, and no agreement between the parties to the appeal extending
the time to prosecute the same shall vary the provisions hereof. The
court of appeals may affirm or reverse the order appealed from, and may
make such order or direction as shall be appropriate to the case. If the
final decree or decrees of the court shall be reversed by the court of
appeals, such reversal shall not divest the city of title to the real
property affected by the appeal.
Section 5-326
§ 5-326 Taxation of costs, charges and expenses. a. The bill of the
reasonable and necessary costs, charges and expenses which by law are
required to be taxed shall not be paid or allowed until they shall have
been taxed by the court after notice given as in this section provided.
Upon such taxation, due proof of the nature and extent of the services
rendered and the disbursements charged shall be furnished, and no
unnecessary costs or charges shall be allowed. All items in the bill
shall be stated in detail and shall be accompanied by such proof of the
reasonableness thereof and the necessity therefor, as is now required by
law and the practice of the court upon taxation of costs and
disbursements in other special proceedings or actions in such court.
Proof by affidavit shall also be given of the dates of rendering
services. No such claim for compensation, in a capital project
proceeding, shall be allowed or paid unless it be accompanied by a
certificate of the comptroller setting forth that the same has been
audited and examined, and further certifying the result of such audit
and examination. Such certificate shall be presumptive evidence of the
correctness, reasonableness and necessity of such bill.
b. In a capital project proceeding, the corporation counsel shall be
given five days' notice of the taxation of the bill of costs, charges
and expenses.
c. Property owners appearing in the proceedings shall not be entitled
to recover counsel fees, costs, disbursements or allowances, except as
provided in sections seven hundred one and seven hundred two of the
eminent domain procedure law.
Section 5-327
§ 5-327 Damages; when, how and to whom paid. a. All damages awarded by
the court, with interest thereon from the date title to the real
property acquired shall have vested in the city and all costs, charges
and expenses which may have been taxed shall be paid by the city to the
respective owners mentioned or referred to in the final decree or to the
persons in whose favor such costs, charges and expenses were taxed, as
hereinafter provided.
b. In a capital project proceeding, payment shall be made within two
calendar months after the entry of the final decree. In default of such
payment, the owners or other persons entitled to be paid in the
proceeding may at any time after application first made to the
comptroller therefor, sue for and recover the amount due, with lawful
interest, and the costs of such suit. Upon the application to the
comptroller for payment, the applicant may state that any outstanding
taxes, assessments or other liens may be deducted from the amount
otherwise payable, and in that event, the fact that there are
outstanding taxes, assessments or other liens shall not impair or
invalidate such application nor operate as a bar to the collection of
interest upon the amount awarded less the amount of such outstanding
taxes, assessments or other liens.
c. Payment of an award to a person named in the final decree as the
owner thereof, if not under legal disability, shall in the absence of
notice in writing to the comptroller of adverse claims thereto, protect
the city.
d. Where an award shall be paid to a person not entitled thereto, the
person to whom it ought to have been paid may sue for and recover such
award, with lawful interest and costs of suit, as so much money had and
received to his or her use by the person to whom the same shall have
been paid.
e. 1. When an owner in whose favor an award shall have been made in a
final decree, shall be under legal disability or absent from the city,
and when the name of the owner shall not be set forth or mentioned in
the final decree or when the owner, although named in such decree,
cannot, upon diligent inquiry, be found, or where there are adverse or
conflicting claims to the money awarded as compensation, the city shall
pay such award into the supreme court, to be secured, disposed of,
invested or paid out as such court shall direct, and such payment shall
be as valid and effectual in all respects as if made to the owner or
other person entitled thereto.
2. In default of such payment into court, the city shall be and remain
liable for such award, with lawful interest thereon from the date upon
which title to the real property for which said award was made vested in
the city, in a capital project proceeding.
Section 5-328
§ 5-328 Advance payments. The mayor may authorize the comptroller to
pay to the person entitled to an award for real property acquired in a
proceeding, in advance of the final determination of such person's
damages pursuant to the requirements of article three of the eminent
domain procedure law, a sum to be determined by the corporation counsel,
after an appraisal of the damages sustained by such person by the expert
or experts employed by the corporation counsel less any liens or
encumbrances of record upon such property, which amount shall be
certified to the comptroller by the corporation counsel. The mayor shall
authorize the comptroller to cause to be published in the City Record
for ten consecutive days a notice stating that the comptroller is ready
to pay such persons entitled to awards for real property acquired in
such proceeding, in advance of the final determination of their damage.
Such notice shall describe the property for which such advance payment
may be made by tax block and lot numbers or the damage parcel numbers of
the real property involved. Before any such advance payment shall be
made, the comptroller shall procure the certificate of the corporation
counsel showing the amount to be paid to the claimant, that said amount
does represent one hundred percent of the city's appraised valuation and
that the person to whom payment is to be made is the person legally
entitled to receive the same. In case the person entitled to an award at
the date of the vesting of title to the real property in the city shall
have transferred or assigned his or her claim, such transfer or
assignment made by such person, or by his or her successor in interest
or legal representative, shall not become binding upon the city unless
the instrument or instruments evidencing such transfer or assignment
shall have been executed and filed in the office of the comptroller
prior to any such advance payment. When any such advance payment shall
have been made, the comptroller, on paying the awards made for the real
property acquired, shall deduct from the total amount allowed as
compensation the sum advanced plus interest thereon from the date of the
payment of such advance to the date of the final decree and the balance
shall be paid as provided in section 5-327 of this subchapter.
Section 5-329
§ 5-329 Purchase of awards by the city. a. In any proceedings
instituted pursuant to any of the provisions of this subchapter, or
pursuant to the provisions of any other statute providing for the
acquisition of title to real property by the city, in which title
thereto shall have become vested in such city prior to the entry of the
final decree of the court, the mayor shall have power and is hereby
authorized to purchase or to approve the purchase on behalf of the city
from the individuals or corporations who were the owners of such real
property at the date of the vesting of title thereto, or their
successors in interest or legal representatives, their right and title
to the award or awards, or any part thereof, to be made in such
proceeding and to take an assignment thereof to the city. If such owner
or owners or their successors in interest or legal representatives shall
have transferred or assigned such claim, such transfer or assignment
made by such owner or owners or by their successors in interest or legal
representatives shall not become binding upon the city unless the
instrument or instruments evidencing such transfer or assignment shall
have been executed and filed in the office of the comptroller as
provided in section 5-330 of this subchapter, prior to the completion of
such purchase by the city.
b. An option granted to the city to purchase such award or awards for
a period not to exceed six months shall not be withdrawn or cancelled
during the period named therein.
Section 5-330
§ 5-330 Instruments assigning or pledging awards. In case of the
pledge, sale, transfer or assignment of an award by the person entitled
to receive the same by virtue of the final decree of the court, or by
other order of the court, the instrument evidencing such pledge, sale,
transfer or assignment, acknowledged or proved as instruments are
required to be acknowledged or proved for the recording of transfers of
real property, shall be filed in the office of the comptroller, who
shall endorse on such instrument its number and the hour, day, month and
year of its receipt. If an assignment of an award be contained in an
instrument recorded in an office in which instruments affecting real
property are by law required to be recorded, a certified copy thereof
may be filed in the office of the comptroller in place of the original.
An alphabetical index shall be kept under the names of the pledgor or
assignor, and of the pledgee or assignee, stating the title of the
proceeding, the time of the filing of the instrument, the file number
thereof, and what part of the award is assigned thereby. A memorandum of
the file number of the instrument shall be made by the comptroller on
the duplicate decree of the court opposite the place where the amount of
the award so assigned is set forth. Every such instrument not so filed
shall be void as against any subsequent pledgee or assignee in good
faith and for a valuable consideration from the same pledgor or
assignor, his or her heirs, administrators or assigns, of the same award
or any portion thereof, the assignment of which is first duly filed in
the office of the comptroller. Payment to the assignee or pledgee shown
to be entitled to the award by such record in the office of the
comptroller shall protect the city from liability to any other person or
persons.
Section 5-331
§ 5-331 Correction of defects. The court at any time may correct any
defect or informality in any notice, petition, pleading, order or decree
in the proceeding, or cause real property affected by such defect,
informality or lack of jurisdiction to be excluded therefrom, or other
real property affected by such defect, informality or lack of
jurisdiction to be included therein by amendment, upon ten days' notice,
published and posted as provided for the institution of the proceeding,
and may direct such further notices to be given to any party in interest
as it shall deem proper.
Section 5-332
§ 5-332 Order to expedite proceeding. At any time after the date of
entry of the order granting the application to condemn, the corporation
counsel, or any owner may apply to the court for an order directing any
owner or owners, or the corporation counsel, as the case may be, to show
cause why further proceedings under this subchapter on the part of such
owner or owners or of the corporation counsel should not be expedited.
Upon the hearing directed by such order to show cause, the court in its
discretion may make an order directing that such proceedings be
expedited in the manner stated therein and also making such further
directions with respect to the particulars shown upon the application as
shall be just and proper in the premises.
Section 5-333
§ 5-333 Discontinuance of proceedings by the mayor. The mayor may
effect a discontinuance of any proceeding as to the whole or a part of
the lands to be acquired in such proceeding, at any time before title to
the real property to be thereby acquired shall have vested in the city,
and may cause new proceedings to be taken for the condemnation of such
real property. In case of such discontinuance, however, the city shall
adhere to the provisions of section seven hundred two of the eminent
domain procedure law and the reasonable actual cash disbursements,
necessarily incurred and made in good faith by any party interested,
shall be paid by the city, after the same shall have been taxed by a
justice of the supreme court, upon ten days' notice of such taxation
being previously given to the corporation counsel, provided the
application to have such disbursements taxed shall be made and presented
to the court within one year after the action of the mayor. For the
purposes of this section, the fair and reasonable value of the services
of an attorney retained by any interested party to represent such
party's interests in said condemnation proceedings, whether on a
contingent fee basis or otherwise, if such retainer be made in good
faith, shall be deemed to be an actual cash disbursement, necessarily
incurred by such interested party and shall be taxable in the same
manner as other disbursements. The amounts taxed as disbursements shall
be due and payable thirty days after written demand for payment thereof
shall have been filed with the comptroller.
Section 5-334
§ 5-334 Vesting of title; date of; seizin; possession. a. The title to
any piece or parcel of the real property authorized to be acquired
hereunder for any public improvement or for any public purpose shall be
vested in the city upon the entry of the order granting the application
to condemn, in a capital project proceeding, in accordance with section
four hundred two of the eminent domain procedure law.
b. Upon the date when title to the real property shall have vested as
provided in subdivision a of this section, the city, in a capital
project proceeding shall become and be seized in fee of or of an
easement in, over, upon, or under such real property as the mayor may
have determined, the same to be held, appropriated, converted and used
for the purposes for which the proceeding was instituted.
c. The city or any person acting under its authority, or the agency
which upon the acquisition of title to such real property will have
jurisdiction thereof, shall immediately or any time thereafter take
possession of such property without suit or other judicial proceedings
in accordance with the provisions of the eminent domain procedure law
pertaining to possession.
Section 5-335
§ 5-335 Vesting of title; effect of, upon real property contracts. a.
Where the whole of any lot or parcel of real property, under lease or
other contract, shall be taken, all the covenants, contracts and
engagements between landlord and tenant or any other contracting parties
touching the same, or any part thereof, upon the vesting of title in the
city, shall cease and determine and be absolutely discharged. Where part
only of any lot or parcel of real property so under lease or other
contract shall be so taken, all contracts and engagements respecting the
same, upon such vesting of title, shall cease and determine and be
absolutely discharged, as to the part thereof so taken, but shall remain
valid and obligatory as to the residue thereof.
b. All persons in possession of such premises at the time of the
vesting of title thereto in the city, shall at the option of the city
become tenants at will of such city and shall, unless the parties
otherwise agree in writing, pay the same rent in effect immediately
prior to vesting of title or unless within ten days after the vesting of
title they shall elect to vacate and give up their respective holdings.
c. Where a person or persons in possession of the premises at the time
of vesting of title thereto are the owners thereof, such person or
persons shall at the option of the city become tenants at will of such
city, unless within ten days after the vesting of title they shall elect
to vacate and give up their holdings. Where such person or persons fail
to vacate and give up their holdings, and become tenants at will of the
city as herein provided, such person or persons shall pay the reasonable
value for the use and occupancy of the premises.
d. Where a person in possession is entitled to an award in such
proceeding the rental as provided in subdivision b and the sum fixed for
use and occupation as provided in subdivision c herein, during the
period between the date of vesting of title in the city and the date of
the actual payment of the award, shall be a lien against such award,
subject only to liens of record at the time of the vesting of title in
the city.
Section 5-336
§ 5-336 Rights of certain owners of property condemned for public use.
1. Notwithstanding any general, special or local law to the contrary,
where rent is paid for the use of land on which a one or two family
dwelling has been constructed, in the event of condemnation for public
use a separate award shall be made to the owner of the land and a
separate award shall be made to the owner of the dwelling except where
there is a written agreement to the contrary.
2. In no event shall the total of the awards, as above, be in excess
of what a single award would have been.
Section 5-337
§ 5-337 Title acquired for streets and courtyards. a. The title
acquired in real property required for any streets shall be kept in
trust, that the same be appropriated and kept open for, or as part of a
public street, forever, in like manner as the other streets in the city
are and of right ought to be.
b. The mayor, at the time of authorizing the proceedings in which
lands are to be acquired for courtyard purposes, may determine whether
the fee or an easement shall be acquired in lands required therefor, and
the mayor may prescribe such conditions and limitations on the title so
to be acquired and as to the temporary or permanent use of the land so
to be acquired as he or she may deem proper. The title which the city
shall acquire to the lands required for courtyard purposes shall be such
as the mayor shall determine. Such title shall be held by the city
subject to such limitations and conditions as to title thereto, or as to
the use thereof, as the mayor shall prescribe. If not inconsistent with
such limitations and conditions as to title or as to the use, land
acquired for courtyard purposes may be devoted to general street uses
whenever the board of estimate shall determine that the public interest
requires such use.
c. The title in fee acquired by the city to real property, except for
street and courtyard purposes, shall be a fee simple absolute.
Section 5-338
§ 5-338 Title acquired for streets; subject to certain easements. If
any individual or corporation, before the entry of the order granting
the application to condemn, has acquired any easement for the purpose of
laying or maintaining in the real property to be acquired for street
purposes in a proceeding pursuant to this subchapter, underground pipes
or conduits for the distribution of water, gas, steam or electricity, or
for pneumatic service, such easement shall not be extinguished, but the
title to the real property so to be acquired for the purposes authorized
shall be taken subject to such easement; provided, however, that nothing
herein contained shall be so construed as to limit the power of the city
to acquire by purchase or by condemnation proceedings the entire plant
or service of such individual or corporation, or to acquire such
easement in such street in any other appropriate proceedings.
Section 5-339
§ 5-339 Title acquired for streets; subject to rights of railroads.
The city may acquire for street purposes title in fee or to an easement,
as may be determined by the mayor to any real property heretofore
acquired through purchase or condemnation by any railroad corporation in
the boroughs of Brooklyn and Queens for its corporate purposes and which
real property lies within the lines of, is adjacent to, adjoins or
separates any street or any part or parts thereof, now or hereafter laid
out upon the city map, where the state commissioner of transportation
certifies that the ownership or exclusive use of such real property or
easement thereover is no longer necessary to the carrying out of such
corporate purposes. Such title or easement, however, shall be acquired
by the city subject to the right of the corporation to continue to use
such real property during the term of its corporate existence and for
its corporate purposes, or in lieu thereof to use for a like term and
like purposes such other portion of the streets within which such real
property shall lie, as the public service commission shall designate.
Section 5-340
§ 5-340 Title acquired for intercepting sewer purposes; over railroad
lands. Notwithstanding any provisions of the railroad law or of any
other statute, general or special, the city is hereby authorized and
empowered to acquire title in fee or to a permanent or temporary
easement, as may be determined by the mayor, in, under, through, over
and across the lands of any railroad company, in any borough of the
city, necessary to construct and maintain an intercepting sewer and the
appurtenances thereunto appertaining, including grit chambers, in any
such borough.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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