Section 5-430
§ 5-430 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 held in a county within the judicial district in which the real
property involved in any proceeding under this subchapter is situated.
2. "Days": Calendar days, exclusive of Sundays and full legal
holidays.
3. "Owner": A person having an estate, interest or easement or lien,
charge or encumbrance on any real property affected by proceedings under
this subchapter.
4. "Street": Includes the surface, subsurface and air space over any
street, avenue, road, alley, lane, highway, boulevard, concourse,
parkway, driveway, culvert, sidewalk, crosswalk, boardwalk, viaduct and
every class of road, square and place, or part thereof, but only such as
are public, and does not include marginal street or wharf or state
arterial highways except those sections of such state arterial highways
enumerated in section 5-432.
5. "Real property": Includes all surface and subsurface structures
within closed streets and all easements and hereditaments, corporeal or
incorporeal, and every estate, interest and right, legal and equitable,
in lands, and every right, interest, privilege, easement and franchise
relating to the same, including terms for years and liens by way of
judgment, mortgage or otherwise.
6. "Capital project proceeding": A condemnation proceeding pursuant to
the provisions of this subchapter for capital project purposes,
authorized pursuant to chapter nine of the charter.
Section 5-431
§ 5-431 Effect upon prior street closings. This subchapter, or any
part thereof, shall not apply to any street heretofore closed.
Section 5-432
§ 5-432 Authority to close streets and to acquire any right, title or
interest therein. a. The city may authorize the closing or
discontinuance of the surface, subsurface or air space over such streets
therein, in whole or in part, upon the determination that (1) such
closing or discontinuance will further the health, safety, pedestrian or
vehicular circulation, housing, economic development or general welfare
of the city and (2) in the case of a partial closing or discontinuance
of the subsurface or air space over such streets, will not substantially
interfere with pedestrian or vehicular use of such streets. In
connection with the closing or discontinuance of the subsurface or air
space over such streets, the city may authorize the closing or
discontinuance of so much of such streets, in whole or in part, for
easements and such other rights as may be necessary or desirable in
order to effect the construction and support of any improvements in the
closed or discontinued air space over or the subsurface of such streets.
Any such closing or discontinuance shall be effected as a capital
project. In connection with any such closing or discontinuance, the city
may acquire any right, title or interest in the closed or discontinued
streets or the closed or discontinued portions thereof, including the
surface or subsurface of or the air space over such streets as a capital
project, whenever it may deem that such acquisition will more
effectually secure the actual discontinuance and closing of streets, in
whole or in part, which may be legally discontinued and closed pursuant
to this subchapter. The provisions of this subchapter which refer to
land or lands within or lying within a closed or discontinued street or
within a street to be closed or discontinued shall be deemed to refer to
the surface and subsurface of and air space over such street or any part
of the surface or subsurface of or air space over such street. The
provisions of this subchapter which refer to fee title shall be deemed
to refer to any right, title or interest acquired or to be acquired by
the city.
b. Compensation and recompense shall be made to the respective owners
of the real property affected or damaged by reason of any such closing
and to the respective owners of the fee title to the land within the
closed street for the damages caused by the taking by the city of such
fee title.
c. Notwithstanding the provisions of any general, special or local
law, the provisions of chapter one of title four and subchapter four of
chapter three of this title shall be applicable to the following
sections of the state arterial highway system located within the city of
New York provided that with regard to such sections all requirements
imposed by federal and state law shall be complied with, including
requirements relating to the construction and support of improvements in
such sections: Franklin D. Roosevelt drive from and including the
Brooklyn Battery crossing to the easterly prolongation of the northerly
line of Robert F. Wagner, Senior place.
d. Where the whole or a part of the subsurface of a street has been
closed or discontinued pursuant to this section, public utility
facilities in such subsurface or part thereof may be maintained in
place, or, if the proposed use of such subsurface requires the
relocation of utility facilities, the owner of such facilities may
relocate such facilities elsewhere within or without such subsurface,
provided, however, that any maintenance in place or relocation of such
facilities shall be authorized by the city pursuant to subdivision one-a
of section 5-433 of this subchapter. Nothing in this section, however,
shall be deemed to create any liability arising from the cost of public
utility facility relocation not recognized at common law or otherwise
created by statute.
Section 5-433
§ 5-433 Resolution authorizing the closing or discontinuance of a
street; contents of. Whenever the closing or discontinuance of a street
has been authorized as a capital project, the resolution of the board of
estimate, providing for the institution of proceedings for the closing
or discontinuance of such street, shall:
1. Specify and describe by courses and distances the part or section
of such street which it is proposed to discontinue and close and the
date upon which such street shall become and be closed, which date shall
not be prior to the date upon which the map, showing the street or such
part thereof proposed to be closed, shall be filed as provided in
section 5-435 of this subchapter, nor subsequent to the date of the
entry of the final decree of the court.
1-a. In the case of the closing or discontinuance of the subsurface of
a street, in whole or in part, specify if public utility facilities
within the subsurface of such street shall be maintained in place or
relocated within or without such subsurface so that the maintenance in
place or proposed relocation of such facilities is consistent with the
proposed use of the closed portion of such subsurface and the
requirements of other facilities located therein.
2. State whether the effectual closing of such street, or other public
necessity, requires the acquisition of the fee title to the whole or any
portion of the land within the street to be closed, and in case it shall
state that such acquisition is necessary, shall further request the
mayor to provide for such acquisition simultaneously with the closing of
such street, and shall specify and describe the part of the lands within
the closed street, fee title to which should be acquired.
3. Adopt three similar maps or plans, prepared by the agency
requesting such closing and acquisition, showing the street discontinued
and closed, the nature and extent of such discontinuance and closing and
the location of the immediately adjacent or intersecting open or
established public streets of the city, sufficient for the
identification and location thereof.
4. Authorize and direct the corporation counsel to make application to
the supreme court to have such court without a jury ascertain and
determine the compensation which justly should be made to the respective
owners of the real property affected, damaged, extinguished or destroyed
by such closing.
Section 5-434
§ 5-434 Acquisition of street being closed or discontinued. Whenever
the closing or discontinuance of a street requires the acquisition of
the fee title to the whole or any portion of the land within the street
to be closed, the order of the mayor directing such acquisition shall:
1. Approve three maps, prepared by the agency requesting the street
closing and acquisition, showing the land in such closed street the fee
title to which is to be acquired.
2. Authorize and direct the corporation counsel to make application to
the supreme court to have such court without a jury ascertain and
determine the compensation which ought justly be made to the respective
owners of the fee title to the land within such closed street.
3. Specify the date upon which the city shall acquire fee title which
date shall be the same as that specified in the resolution of the board
of estimate as the date upon which the street proposed to be
discontinued or closed, shall become and be closed.
Section 5-435
§ 5-435 Street closing and acquisition maps; certification and filing
of. a. When the maps described in subdivision three of section 5-433 of
this subchapter shall have been adopted, as therein provided, such maps
shall be certified in the manner provided by law for the certification
of similar maps adopted by the board of estimate. One of the maps so
certified shall be filed by the agency requesting the discontinuance or
closing, and shall remain of record in its office. The second map so
certified shall be filed by such agency in the office of the corporation
counsel. The third map shall be filed by such agency, and remain of
record in the office in which instruments affecting real property in the
county in which the closed street may be situated are required to be
recorded. Such map shall be final and conclusive upon the city and upon
all persons whomsoever.
b. When the maps described in subdivision one of section 5-434 of this
subchapter shall have been approved and certified, such maps shall be
filed by the agency requesting the acquisition in the same offices
specified in subdivision a of this section.
c. Street closing and acquisition maps required to be filed in the
office in which instruments affecting real property in the county in
which the street to be closed and acquired may be situated shall be
filed on the same date.
Section 5-436
§ 5-436 Order to expedite. At any time after the date of the filing of
such street closing and acquisition maps, 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 an order to show cause, the court, in its
discretion, may make an order directing that such proceedings should 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 5-437
§ 5-437 Release to owners. In any case where any street which has been
conveyed or ceded to the city without compensation, shall be
discontinued and closed and the person or persons who have made such
grant or conveyance, or his, hers or their heirs, devisees, executors or
successors, are the owners and have retained title to the property
fronting thereon, the board of estimate is authorized, on behalf of the
city, to release and convey without compensation or upon such terms as
may appear to such board to be just and equitable, to such owner or
owners, his, hers or their heirs, devisees, executors or successors, all
the right, title and interest which the city may have so acquired in and
to the part of such street, in consideration of the release by such
owner or owners of any and all claims for damages or compensation for
and on account of the discontinuance or closing thereof. In such case no
proceeding shall be had to estimate such loss and damage as provided in
this subchapter.
Section 5-438
§ 5-438 Closing of street; vesting of title. Upon the date specified
in the resolution of the board of estimate as the date upon which the
street, proposed to be discontinued or closed, shall become and be
closed, all easements, in and over the land within such closed street,
of every nature whatsoever, whether in favor of the public or in favor
of the owners of the real property abutting thereon, shall become and be
extinguished and destroyed, and ever after such date, such former street
shall cease to be or remain for any purpose whatever, a street. In all
cases where the city, at the time of such closing, shall acquire the fee
title to the whole or any part of the land within such closed street,
the city shall acquire and become and be vested with the fee title
thereto, simultaneously with the closing thereof.
Section 5-439
§ 5-439 Closing of street; effect on real property contracts. In all
cases where any part of any lot or parcel of land or other premises,
under lease or other contract, shall be contiguous to any street after
the closing thereof, all the covenants, contracts and agreements between
landlord and tenant or any other contracting parties, touching the same
or any part thereof, shall, upon the date of the closing thereof,
respectively cease and determine and be absolutely discharged.
Section 5-440
§ 5-440 Notice of application to court. Whenever the maps shall have
been filed pursuant to section 5-435 of this subchapter, the corporation
counsel shall institute a proceeding to ascertain and determine the
compensation which justly should be made to the respective owners of the
real property affected or damaged by the closing of the street and to
the respective owners of the fee title to the land in such closed
street, the acquisition of which may be provided for in the order of the
mayor. Such corporation counsel shall cause a notice of the application
to the supreme court to have such court, without a jury, ascertain and
determine such compensation, to be published in the City Record for ten
days prior to the making of such application, and shall state the time
and place when and where such application shall be made. Such notice
shall specify and describe the closed street by means of the description
contained in the resolution which provided for the closing thereof. It
shall also specify what portion, if any, of the land in the closed
street the acquisition of fee title to which is provided for in such
order.
Section 5-441
§ 5-441 Application to court; contents of petition. Upon the day
stated in such notice, or upon such further day to which the court may
for good cause adjourn such application, the corporation counsel shall
present a petition, signed by him or her on behalf of the city:
1. Setting forth briefly the proceedings had in relation to such
discontinuance or closing.
2. Showing the nature and extent thereof.
3. Indicating the real property affected thereby, and to what portion,
if any, of the land within the closed street the city has acquired or is
authorized to acquire the fee title, by reference to the maps which
shall have been filed as provided in section 5-435 of this subchapter. A
copy of each map shall be attached to the petition.
4. Praying that the compensation which justly should be made to the
respective owners of the real property affected or damaged by reason of
such closing and also, in a proper case, the compensation which justly
should be made to the respective owners of the fee title to the land
within the closed street, acquired or to be acquired in the proceeding,
be ascertained and determined by the supreme court without a jury.
Section 5-442
§ 5-442 Order granting application; filing thereof. Upon due proof to
its satisfaction of the publication of the required notice and upon the
filing of the required petition, the court shall enter an order granting
the application, which order shall be filed in the office of the clerk
of each county in which the closed street and the property affected or
damaged by the closing thereof or any part of either may be situated.
Section 5-443
§ 5-443 Filing of damage map; notice to file claims. a. Thereupon the
corporation counsel shall file in the office of the clerk of each county
in which the closed street and the real property affected or damaged by
the closing thereof or any part of either may be situated, a survey or
map showing such real property subdivided into parcels corresponding
with the separate ownerships of the land within the closed street
acquired by the city and of the real property affected or damaged by the
closing thereof, as nearly as the same has been ascertained.
b. The corporation counsel shall also cause to be published in the
City Record a notice containing:
1. The same description of the closed street which was contained in
the resolution closing the same and a general description of the real
property affected or damaged by the closing of such street, and the land
in the closed street acquired or to be acquired in such proceeding by
the city.
2. A statement that the survey or map thereof has been filed and
requiring that all claimants, on or before a date therein specified,
shall file with the clerk of each county in which such closed street and
the real property affected or damaged by the closing or taking thereof,
or any part of either, may be situated, a written claim or demand, duly
verified, in the manner provided by law for the verification of
pleadings in an action, setting forth the real property owned by the
claimant, and the claimant's post office address.
c. The claimant or his or her attorney, within the same time, shall
serve on the corporation counsel a copy of such verified claim.
Section 5-444
§ 5-444 Proof of ownership. a. The proof of title to real property for
which damages caused by the closing of the street are claimed, and proof
of title to real property taken or damaged by reason of the acquisition
by the city of the fee title to the land within the closed street, in
all cases where the title thereto is undisputed, together with proof of
liens, encumbrances or burdens 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 on the corporation
counsel a copy of their verified claims, a notice of the time and place
at which he or she will receive such proof of title. In all cases where
the title of a claimant is disputed, it shall be the duty of the court
to determine the ownership of such real property, or the right to
damages thereto, upon the proof submitted to the court during the trial
of the proceeding.
b. The court shall also have power to determine all questions of title
and right to damages, incident to the trial of the proceeding.
Section 5-445
§ 5-445 Note of issue of the proceeding. After all parties who have
filed verified claims 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 the corporation
counsel, such corporation counsel shall serve upon all parties or their
attorneys who have appeared in the proceeding, a note of issue thereof
and shall file the same with the clerk of the court of the county in
which the trial is to be had. The trial shall be had in such county
within the judicial district in which the real property affected by the
proceeding is situated as the corporation counsel in the note of issue
shall designate. Such note of issue shall be served at least ten days
before, and shall be filed at least eight days before the date for which
the proceeding is noticed for trial. The note of issue shall briefly
state:
1. The title of the proceeding.
2. The date and entry of the order granting the application to have
the compensation for damages caused by the closing ascertained and
determined.
3. The names and addresses of the parties who have filed claims, and
the names and addresses of their respective attorneys.
4. A brief statement as to the extent of the street which has been
closed and discontinued and the part thereof to be acquired by the city.
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 such application. When the note of issue has been served and
filed, the proceeding must remain on the calendar until finally disposed
of.
Section 5-446
§ 5-446 View by court. It shall be the duty of the justice trying the
proceeding to view the real property affected by the closing.
Section 5-447
§ 5-447 Decision of the court. The court, after hearing such testimony
and considering such proofs as may be offered, shall ascertain and
estimate the compensation which ought justly to be made by the city to
the respective owners of the real property affected and damaged by any
street closing, and shall also ascertain and determine the compensation
to be made to the respective owners of the fee title to the land within
the closed street for damages sustained by reason of the acquisition by
the city of the fee title thereto. The court shall also ascertain and
estimate the value of the city's interest in the respective parcels of
the closed street.
Section 5-448
§ 5-448 Corporation counsel to furnish clerks; agencies to furnish
maps. a. It shall be the duty of the corporation counsel to furnish to
the court in the proceeding to discontinue and close any street and to
acquire title thereto, such necessary clerks and other employees, and to
provide such suitable offices as they may require to enable them to
fully and satisfactorily discharge the duties imposed upon the court by
this subchapter.
b. The board of estimate may require any agency of the city to furnish
any surveys or maps required in connection with the closing of any
street.
Section 5-449
§ 5-449 Amendment of street closing proceeding to include acquisition
of fee title to closed street. Where a street has been closed pursuant
to the provisions of this subchapter, and the compensation to be made
for the damages caused by the closing thereof is to be ascertained and
determined by the supreme court without a jury, and the city is not the
owner of the fee title to the land within such closed street and the
effectual closing of such street or part thereof, or other public
necessity, requires that such city should acquire the fee title to the
whole or part of the land within the closed street, the city shall be
authorized to acquire the fee title thereto for the purposes provided by
this subchapter. Such acquisition may be authorized before or after the
institution of a proceeding to have the supreme court without a jury
ascertain and determine the compensation to be made for the damages
caused by the closing of such street, but the order of the mayor
instituting the proceeding for the acquisition shall be approved prior
to the filing of the tentative decree in any street closing proceeding.
The mayor, in issuing such order, shall comply with the provisions of
section 5-434 of this subchapter. Such order shall authorize and direct
the corporation counsel to apply to the supreme court in the proper
judicial district to have such court without a jury ascertain and
determine the compensation which justly should be made to the respective
owners of the fee title to the land within the closed street for the
damages sustained by such owners on account of the acquisition by the
city of the fee title thereto. Such order shall specify the date upon
which the fee title to the land within the closed street shall become
and be vested in the city, in accordance with the provisions of
subdivision three of section 5-434, which date shall not be prior to the
entry of the order authorizing the court to ascertain and determine the
compensation to be made therefor nor subsequent to the entry of the
final decree of the court in such proceeding. Upon the date so fixed,
the fee title to the land within the closed street shall become and be
vested in the city. Upon the issuance of such order the corporation
counsel shall give notice by publication for ten days in the City Record
that he or she will apply to the supreme court, stating the time and
place when and where such application will be made, to have such court
without a jury ascertain and determine the compensation which justly
should be made to the respective owners of the fee title to the land
within the closed street. Upon such application the corporation counsel
shall present to the court a petition signed and verified by him or her,
setting forth the action had by the mayor, and indicating the land
within the closed street, the fee title to which is to be acquired by
the city, by a precise description with courses and distances, having
reference to the city map, an extract from which shall be attached, and
praying that the compensation to be made therefor shall be ascertained
and determined by such court without a jury. At the time and place
specified in such notice, unless the court shall adjourn such
application to a subsequent day, and, in that event, at the time and
place to which the same may be adjourned, upon due proof to its
satisfaction of the publication of such notice and upon the filing of
such petition, the court shall enter an order granting the application,
which order shall be filed in the office of the clerk of the county in
which the closed street is situated. Awards for damages, due to the
acquisition of the fee title to the land within the closed street, shall
be made as provided in any proceeding instituted pursuant to this
subchapter.
Section 5-450
§ 5-450 Agreements with owners. a. It shall also be lawful for the
board of estimate, with respect to a street closing, and the mayor, with
respect to acquisition, either before of after the institution of a
proceeding under this subchapter, to agree with the owners of the real
property that will be affected by such closing, for and about the
cession to the city of other real property included within the
boundaries of any established street shown on the city map, in lieu of
the real property comprised within the lines of the closed street, or to
agree for and about the compensation to be made to such owners for the
same or for and about the value of real property to be ceded in lieu of
such discontinued or closed portion or portions of such street.
b. In case of any such agreement or agreements with part only of the
owners entitled to and interested in the same real property so affected,
for the purpose of making any such discontinuance or closing, or cession
in lieu of such closing, the same shall be valid and binding upon the
parties thereto, and the court shall nevertheless enter upon and make or
proceed with its estimate, and tentative and final decrees as to the
residue of such real property affected by the closing, concerning which
the owners thereof shall not agree.
c. The final decree of the court shall be of like force and effect in
regard to the matters comprised therein, as if no such agreement as to
the part of the premises had been made.
Section 5-451
§ 5-451 Tentative decree; preparation, contents and filing of. a. The
court shall instruct the corporation counsel to prepare tabular
abstracts of its estimated damage due to the closing, and of the damage
due to the acquisition by the city of fee title to the land within the
closed street and of the value of the city's interest in the respective
parcels of the closed street. The tabular abstract of estimated damage
due to the closing of the street shall set forth:
1. The amount of loss and damage to each and every parcel of real
property affected by the proceeding.
2. The name of the respective owners of each and every parcel of real
property affected thereby, as far as the same shall be ascertained.
3. A sufficient designation or description of the respective lots or
parcels of real property damaged by the closing of the street or by the
acquisition of the fee title to the lands in the closed street, by
reference to numbers of the respective parcels indicated upon the
surveys, diagrams, maps or plans which shall be attached to such tabular
abstracts.
b. The court shall appraise and determine and separately set forth and
state in the tabular abstract, the value of the right, title and
interest of the city in and to the fee of the land within the closed
street.
c. Such tabular abstracts shall be signed by the justice trying the
proceedings and filed with the clerk of each county in which the closed
street and the real property abutting thereon or any part of either may
be situated and when so filed shall constitute the tentative decree of
the court as to awards for damages and as to the value of the city's
interest in the respective parcels of land within the closed street.
Section 5-452
§ 5-452 Notice to file objections; hearing thereon. a. Upon the filing
of the tentative decree, the corporation counsel shall give notice, by
advertisement to be published for fifteen days in the City Record, of
the filing of such tentative decree, and that the city and all other
parties to such proceeding or in any way interested in the real property
affected thereby, having any objections thereto, shall file such
objections, in writing, duly verified in the manner required by law for
the verification of pleadings in an action, and setting forth the real
property owned by the objector and his or her post office address, with
such clerk within twenty days after the first publication of such
notice, and 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 the justice will hear the parties so objecting. Similar notice
for at least ten days shall be given of the filing of any new,
supplemental or amended tentative decree and for the filing of
objections thereto. Every party so objecting or such party's attorney
shall, within the same time, serve on the corporation counsel a copy of
such verified objections.
b. Upon such application, the justice shall fix the time when he or
she will hear the parties so objecting and desiring to be heard. At the
time 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.
c. 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 the signing of the final
decree.
Section 5-453
§ 5-453 Correction of defects. The court shall have power at any time
to correct any pleading or any defect or informality, in any special
proceeding authorized by this subchapter, that may be necessary, or to
amend any description, or cause other real property to be included
therein or real property included therein to be excluded therefrom, or
to permit any person having an interest therein to be made a party
thereto, or to relieve from any default, mistake, or irregularity or to
direct such further notice to be given to any party in interest as it
shall deem proper.
Section 5-454
§ 5-454 Final decree; preparation, contents and filing of. a. After
considering the objections, if any, and making any correction or
alteration in the tentative decree as to any award or as to any matter
in the tentative decree which the court shall consider just and proper,
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, and shall have:
1. The final awards for damages due to the closing as determined by
the court set opposite the respective damage parcel numbers in a column
headed "final awards for closing damages" in the tabular abstract of
awards.
2. The final awards for damages due to the acquisition of the fee
title in the land within the closed street set opposite the respective
parcels of the closed street in the column headed "final awards for land
in closed street" in the tabular abstract of awards.
3. The value of the city's interest in the land within the respective
parcels of the closed street in a column headed "value of city's
interest in respective parcels of closed street."
b. Such final decree shall contain a statement:
1. Of the facts conferring on the court jurisdiction of the
proceeding.
2. Of such other matters as the court shall require to be set forth.
3. That the amounts set opposite the respective damage parcel numbers
in the column headed "final awards for closing damages" in the tabular
abstract of awards constitute and are the just compensation which the
respective owners are entitled to receive from the city for damages
caused by the closing of the street.
4. That the amounts set opposite the respective parcels of the closed
street in the column headed "final awards for land in closed street" in
the tabular abstract of awards, constitute and are the just compensation
which the respective owners are entitled to receive from the city for
damages caused by the acquisition by the city of the fee title to the
land within the closed street.
5. That the amounts set opposite the respective parcels of the closed
street in the column headed "value of city's interest in the respective
parcels of the closed street" in such tabular abstract constitute the
sums of money to be paid to the city for a conveyance of the city's
interest therein by the parties entitled to a conveyance thereof.
c. Such final decree shall also set forth:
1. The several parcels damaged by the closing of the street and the
several parcels of the closed street and the several parcels outside of
the closed street, by reference to the numbers of such parcels on the
respective maps, survey, diagrams, or plans attached thereto, duly
corrected, when necessary, and it shall not be necessary to describe any
parcels by a description by metes and bounds.
2. The names of the respective owners of the several parcels damaged
by the closing of such street, as far as the same shall have been
ascertained, provided that 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 or by the owners of the respective parcels for loss or
damage, without specifying their names or their estates or interests
therein, and in such cases the owners may be specified as unknown.
d. The final decree, together with all of the affidavits and proofs
upon which the same is based, shall be filed in the office of the clerk
of each county in which the closed street and the real property damaged
by the closing thereof or any part of either may be situated. 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 5-455
§ 5-455 Appeals to appellate division and court of appeals. a. The
city, or any party or person affected by the proceeding and aggrieved by
the final decree of the court therein, 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. 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 in special proceedings. Such appeal shall be
heard and determined by the appellate division upon the merits, both as
to the questions 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 before the court, or such part or portion thereof, as
the justice at special term, who made the decree appealed from, 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.
b. The city, or any party or person affected by the proceeding and
aggrieved by the order of the appellate division entered on any such
appeal, may appeal to the court of appeals from such order. 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. 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.
Section 5-456
§ 5-456 Taxation of costs, charges and expenses. a. The costs or
charges of any agency of the city, or others, which shall be required by
law to be taxed, shall not be paid or allowed for any service performed
under this subchapter, unless the same shall be taxed by the court. A
bill of such costs, charges and expenses shall be filed in the office of
the clerk of the court in the county in which the land is situated at
least ten days before the same shall be presented for taxation, and
there shall be annexed thereto a statement of the amounts, if any,
previously taxed, to whom the same were payable and the date of such
taxation. A notice shall be published in the City Record, for ten days,
of the time and place of taxing such costs, charges and expenses, which
shall be thereupon taxed by a justice of the supreme court, or by a
referee under his or her special order.
b. All such costs and expenses or disbursements shall be stated in
detail in the bill of costs, charges and expenses, and shall be
accompanied by such proof of the reasonableness and necessity thereof 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.
Section 5-457
§ 5-457 Awards and costs; when, how and to whom paid. a. All damages
awarded by the court, and all costs and expenses which may be taxed in
the proceeding, shall be paid by the city to the respective persons
mentioned or referred to in the final decree of the court or in whose
favor such costs and expenses shall be taxed. In a capital project
proceeding, such costs and expenses shall be deemed part of the cost of
the acquisition of land or permanent rights in land and may be financed
in the same manner as the acquisition of land or permanent rights in
land.
b. Whenever the amount of damages awarded in any final decree,
together with the costs which shall have been taxed in the proceeding,
shall exceed the balance remaining in the fund, from which such amounts
are payable, after deducting all outstanding claims against such
balance, the court, upon proper application of an owner or other person
entitled to such excess, shall require the city to issue and sell serial
bonds the proceeds of which shall be paid into such fund to meet such
deficiency.
c. In default of payment, in a capital project proceeding, the owners,
or other persons entitled to be paid, 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 suit.
d. Except when any sum or sums of money shall in the final decree be
made to "unknown owners", the supreme court, upon the application of the
city or of any person entitled to or claiming to be interested in the
lands, tenements or hereditaments for which such awards have been made,
or any part thereof, shall either direct the same to be retained by the
comptroller, or to be paid into the supreme court until the title
thereto or the respective interests and estates of all parties therein
shall be determined by the court. Upon such application the court may
take the proofs and testimony of the claimant or claimants or parties
interested in the lands for which the awards have been made or refer the
matter to a referee for such purpose.
Section 5-458
§ 5-458 Awards; deposits of; payment of, to persons not entitled
thereto. a. Whenever the owner, in whose favor any awards shall be made,
shall be a minor or incompetent or absent from the city, and also in all
cases where the name of the owner shall not be set forth or mentioned in
the final decree, or where such owner, being named therein, cannot be
found, or where there are adverse or conflicting claims to the money
awarded as compensation, it shall be lawful for the comptroller to pay
such awards made in the final decree into the supreme court, to be
invested, secured, disposed of and paid out as such court shall direct.
Such payment shall be as valid and effectual in all respects as if made
to such owners according to their just rights, if they had been known
and had all been present, of full age and competent.
b. In all cases, however, where any such award, which shall be made in
the final decree in favor of any person whether named or not named in
the final decree of the court, shall be paid to any person or persons
whomsoever, when the same shall of right belong, and ought to have been
paid to some other person or persons, it shall be lawful for the person
or persons, to whom the same ought to have been paid, to sue for and
recover the same, with lawful interest and costs of suit, from the
person or persons, to whom the same shall have been paid, as so much
money had and received to the use of the plaintiff or plaintiffs, by the
person or persons, respectively, to whom the same shall have been so
paid, and the final decree of the court, with proof of payment, shall be
conclusive evidence of such payment in such suit.
Section 5-459
§ 5-459 Purchase of awards by the city. The provisions of section
5-329 of this subchapter shall be construed to have application to and
to be incorporated into this subchapter.
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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