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Whenever the owner of any private property any part of or interest in which shall have been taken under any proceeding had pursuant to this subchapter shall claim that the prosecution of any work done pursuant to such proceeding has been the proximate cause of actual and material damage to any part of such property and that commissioners of appraisal could not have taken cognizance of such damage pursuant to section 5-387 of this subchapter, until the actual happening thereof because of its unforeseeable or speculative nature, the proper person or board representing the city may agree with such owner as to the amount of such damages. If such agreement cannot be made, such owner may present to the commissioners of appraisal his or her claim in writing duly verified on oath. It shall be the duty of the commissioners to hear allegations and proofs and to proceed in like manner as is provided in the case of property taken pursuant to such proceedings as aforesaid and to determine such actual damages, if any, which were unforeseeable or speculative until the actual happening thereof. The amount of such damages so agreed upon, if any, or so determined, shall be payable and collectible in the same manner as is provided in the case of awards made through the confirmation of a report of commissioners of appraisal in such proceedings. In case at the time of making any such claim there shall be no commissioners authorized to take cognizance thereof, the corporation counsel, for and on behalf of the city, shall make an application for the appointment of commissioners of appraisal in the manner prescribed by this subchapter, to take cognizance of such claims. Provided, however, that such claims shall be presented in the manner above specified within two years from and after the completion of the work, the prosecution of which is claimed to have been the proximate cause of such damage and that such claim shall be supported by proof of interest in the property alleged to have been damaged and of such damage and that it resulted proximately from the prosecution of such work, as aforesaid, and that it was so unforeseeable or speculative, as aforesaid; and that the claim could not, with due diligence, have been presented to prior commissioners of appraisal subsequently to the happening of the damage. In every case the payment of the amount agreed upon or determined or adjudged under and pursuant to this section shall be a continuing, complete, and conclusive bar to all claim of damage by anyone whomsoever to the property concerned or any part thereof due to the prosecution of the work.
Within twenty days after notice of the confirmation, modification or rejection of the report of the commissioners, as provided for in section 5-391 of this subchapter, either party may appeal, by notice in writing to the other party, to the appellate division of the supreme court, from the order confirming, modifying or rejecting the report of the commissioners. Such appeal shall be heard on due notice thereof being given, according to the rules and practice of such court. On the hearing of such appeal, the court may affirm, modify or reverse the order of special term or it may direct a new appraisal and determination of any question passed upon, by the same or new commissioners, in its discretion, but from any determination of the appellate division, either party, if aggrieved, may take an appeal which shall be heard and determined by the court of appeals. If the amount of compensation to be made by the city is increased after a new trial, the difference shall be paid by the comptroller to the parties entitled to the same, or shall be deposited, as the court may direct; and if the amount is diminished, the difference shall be refunded to such city by the party to whom the same may have been paid, the judgment therefor may be rendered by the court, on the filing of a subsequent decision, against the party liable to pay the same. But 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 estate with which such appeal is concerned. Such appeal shall be heard upon the evidence taken before such commissioners, and any affidavits as to irregularities submitted to the court at special term, and three typewritten copies of such evidence shall be furnished by the city to the party taking the appeal within ten days after the appeal is perfected, and such appeals may be heard on the evidence so furnished, and such appeals may be taken without security thereon.
The supreme court of the judicial district in which the real estate, or any part thereof, is situated, shall have power at any time to amend any defect or informality in any of the special proceedings authorized by this subchapter as may be necessary, or to cause other property to be included therein and to direct such further notice to be given to any party in interest as it deems proper, and also to appoint other commissioners in place of any who shall die, or refuse or neglect to serve, or be incapable of serving or be removed. Such court may at any time remove any of such commissioners of appraisal who, in its judgment, shall be incapable of serving or who shall for any reason in its judgment be an unfit person to serve as such commissioner. The cause of such removal shall be specified in the order making the same. If, in any particular, it shall, at any time, be found necessary to amend any pleading or proceeding, or to supply any defect therein, arising in the course of any special proceeding authorized by this subchapter, the same may be corrected or supplied in such manner as may be directed by the supreme court, which is hereby authorized to make such amendment or correction.
The commissioner of environmental protection, subject to the approval of the board of estimate, may agree with the owners and persons interested in any real estate laid down on such maps as to the amount of compensation to be paid to such owners or persons interested for the taking or using and occupying such real estate. In case any such real estate shall be owned, occupied or enjoyed by the people of this state or by any county, town or school district within this state, such rights, titles, interests or properties may be paid for upon agreement respectively with the office of general services, who shall act for the people of the state, with a chairman and a majority in numbers of the board of supervisors of any county who shall act for such county, and with the supervisors and commissioner of highways, of any town who shall all act for such town, and with the trustees of any school district who shall act for such district. The office of general services shall have power to grant to the city any real estate belonging to the people of this state, which may be required for the purposes indicated in this subchapter, on such terms as may be agreed on between it and the commissioner of environmental protection, always, however, reserving and maintaining the rights of the people and riparian owners to go to the water at any point to which the same may be drawn. If any real estate of any county, town or school district is required by the city for the purposes of this subchapter the majority of the board of supervisors acting for such county, or the supervisors of any such town, with the commissioners of highway therein acting for such town, or the trustees of any school district acting for such district, may grant or surrender such real estate for such compensation as may be agreed upon between such officers respectively and the commissioner of environmental protection.
The term real estate as used in this subchapter shall be construed to signify and embrace all uplands, lands under water, the waters of any lake, pond or stream, all water rights or privileges, and any and all easements and incorporated hereditaments and every estate, interest and right, legal and equitable, in land or water, including terms for years, and liens thereon by way of judgment, mortgages or otherwise, and also all claims for damage to such real estate. It shall also be construed to include all real estate (as the term is above defined) heretofore or hereafter required or used for railroad, highway or other public purposes, providing the persons or corporations owning such real estate or claiming interest therein, shall be allowed the perpetual use for such purposes of the same or of such other real estate to be acquired for the purposes of this subchapter as will afford practicable route or location for such railroad, highway or other public purpose, and in the case of a railroad, commensurate with and adapted to its needs; and provided also that such persons or corporations shall not directly or indirectly be subject to expense, loss or damage by reason of changing such route or location, but that such expense, loss or damage shall be borne by the city. In case any real estate so acquired, or used for public purposes, is sought to be taken or affected for the purposes of this subchapter there shall be designated upon the maps referred to in the previous sections of this subchapter, and there shall be described in the petition, hereinbefore referred to, such portion of the other real estate shown on such maps and described in such petition, as it is proposed to substitute in place of the real estate then used for such railroad, highway or other public purposes. Provided, that wherever the commissioner of environmental protection has heretofore located on any map filed in the office of the commissioners of appraisal, a substituted route for any railroad, the same shall not be subsequently changed without the assent of such company. The supreme court at the special term to which the petition is presented or at such other special term as the consideration thereof may be adjourned to, shall either approve the substituted route or refer the same back to the commissioner of environmental protection for alteration or amendment and may refer the same back, with such directions or suggestions as such court may deem advisable, and as often as necessary and until such commissioners shall determine such substituted route as may be approved by the court. An appeal from any order made by such court at special term, under the provisions of this section, may be taken by any person or corporation interested in and aggrieved thereby to the appellate division and court of appeals, and shall be heard as a non-enumerated motion. The commissioners of appraisal, hereinbefore referred to, in determining the compensation to be made to the persons or corporations owning such real estate, or claiming interest therein, shall include in the amount of such compensation such sum as shall be sufficient to defray the expenses of making such change of route and location and of building such railroad or highway. Such commissioners of appraisal shall suggest in their report, and the court in the order confirming such report shall determine, subject to review by the appellate division, what reasonable time after payment of the awards to such persons or corporations shall be sufficient within which to complete the work of making such change. Neither the city, nor the commissioner of environmental protection shall be entitled to take possession or interfere with the use of such real estate for the enumerated purposes, before the expiration of such time. Such time may be subsequently extended by the court (subject to review as aforesaid) upon a sufficient cause shown. After the expiration of this time so determined or extended no use shall be made of such real estate which shall cause pollution to the water in such reservoir or interfere with its flow.
The commissioners of appraisal appointed in pursuance of this subchapter shall receive as compensation such fees and expenses as may be taxed by the court upon notice to the corporation counsel who shall also furnish them with the necessary clerks, stenographers, surveyors and other employees. The corporation counsel shall, either in person, or by such assistants or other counsel as he or she shall designate for the purpose, appear for and protect the interests of the city in all proceedings in court under this subchapter including the taxation of fees, compensation and expenses and proceedings before the commissioners. The fees of the commissioners and the salaries and compensation of their employees, and their necessary traveling expenses, and all other necessary expenses, in and about the special proceedings provided by this subchapter to be had for acquiring title or extinguishing claims for damages to real estate, and such allowances for counsel fees as may be made by order of the court shall be paid by the comptroller out of the funds provided therefor. Such fees and expenses shall not be paid until they have been taxed before a justice of the supreme court in the judicial district in which the lands or some part thereof are situated upon eight days' notice to the corporation counsel. Such allowances shall in no case exceed the limits prescribed by section eight thousand three hundred three of the civil practice law and rules. The salaries and compensation of the persons employed, as provided for in this subchapter, to prepare the necessary surveys, plans and estimates and for other purposes and to direct, supervise and inspect the work required to be done under the provisions of this subchapter, and such other expenses in and about the same as are not herein required to be under contracts let after completion, shall be paid by the comptroller on the certification of the commissioner of environmental protection or of such person or persons as the commissioner may designate. The compensation and expenses of such of the corporation counsel's assistants or other counsel as the corporation counsel may designate to represent and aid the commissioner in the performance of his or her duties under this subchapter shall also be paid out of the funds provided therefor, and upon the certificate of the corporation counsel who shall have power to appoint such assistants or other counsel, and to fix their compensation. The various sums of money growing due from time to time, under the terms of the several contracts, made for the doing of the work and furnishing the material required by this subchapter, shall be paid by the comptroller on the certification of the commissioner of environmental protection or such person or persons as the commissioner may from time to time designate.
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