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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.
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.
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.
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.
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.
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.
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.
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