MONKEY BUSINESS WITH THE ADVANCE PAYMENT

          New York’s Eminent Domain Procedure Law (EDPL) provides that a condemnor must make an advance payment to a former owner in the amount of its highest approved appraisal.  (EDPL Sec. 304).

          The statute contemplated payment of the advance payment to the owner except in three circumstances: (1) Where there is a potential conflict of title or dispute as to who is entitled to receive the payment; (2) where more than 90 days have passed following vesting of title in the condemnor and an agreement has not been reached; or (3) where the taking was “for a federally aided project and the condemnor determines it necessary to deposit the amount of the highest appraised value without delay in order to proceed with the letting of a construction contract and to comply with federal laws, rules and regulations” EDPL Sec. 304 [E](2).

          The Attorney General almost always claims that deposit is necessary because of a federally aided project.  This improper practice requires the unnecessary filing of a separate distribution proceeding.  In a decision written by Court of Claims Judge Stephen J. Mignano, 292 Piermont, LLC v The State of New York (Decision filed December 29, 2014), the Court noted that the State deposited the advance payment the day after vesting title.  It held that the deposit was not pursuant to any of the terms of the statute.  The Court also discussed the fact that a claimant could appropriately refuse to sign an agreement which contained improper language was consistent with the statute which required the condemnor to make every reasonable effort to justify compensate persons for such real property by negotiation and agreement.  EDPL Sec. 301.  Judge Mignano held that claimant’s letter adequately accepted the offer in its letter and the amount on deposit should have been released to claimant.

          In another decision, Court of Claims Judge Scuccimarra held that there was no basis for the State to claim that the deposit was necessary because of a federal basis.  In addition, Judge Scuccimarra wrote, “[a]dditionally, the Court cannot help but agree that there is an uncomfortable pattern on the part of the State in making such deposits as a matter of course, and with impunity, since it is not required to give notice or provide a reason initially, but rather provides a rationale for the deposit after the fact, when the citizen has been put to the expense of initiating a distribution proceeding in this Court.  This is suggested by the sea of distribution proceedings recently assigned throughout the Court of Claims, brought by the same attorney with analogous factual iterations.  Citations omitted.”

          The same attorneys are this firm.  We refuse to allow the State to insist on conditions and provision not permitted by law. 

Posted in Advance Payment Agreement, Advance Payments, Distribution Proceeding, Uncategorized
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