NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
SPECIAL PROCEEDING FOR RELEASE OF CLAIM AGAINST STATE OF INFANT
OR INCOMPETENT FOR APPROPRIATION OF REAL PROPERTY
Section 1801. Grounds.
1802. By whom maintained.
1803. Notice of petition.
1804. Contents of petition.
1807. Payment of compensation; release.
1808. Distribution of proceeds of compensation.
Sec. 1801. GROUNDS.
In any case, where the person entitled to compensation from the
state, by reason of the appropriation by the state of real
property, or of any easement therein, or of a term, estate,
inchoate right of dower, or other right or interest in real
property, and of legal damages caused by any such appropriation,
and of damages sustained by any entry upon, use or occupation of,
or injury to such real property by the state prior to completion
of appropriation, is an infant, a person incompetent to manage
his affairs by reason of mental illness or other cause, or a
conservatee as designated in article seventy-seven of the mental
hygiene law, and whose interest in such real property or rights
thereunder as aforementioned is not governed by a trust expressed
in a will creating the estate nor subject to a valid power of
sale contained in such will which does not expressly prohibit the
giving of a release to the state because of such appropriation, a
special proceeding may be commenced in the county where the
appropriated property or a part thereof is situated, for leave to
release to the state the claim for compensation of such infant,
incompetent person or conservatee, in the manner provided in this
article, for the amount of consideration therefor offered by the
state. This article shall also apply to the contingent interest
of an infant not in being.
Sec. 1802. BY WHOM MAINTAINED.
1. Except as provided in subdivision two, the special
proceeding may be maintained only by the general or
testamentary guardian or guardian appointed by deed of the
property of the infant, or by the committee of the property
of the incompetent person, or by the conservator of the
property of a conservatee. Where it is maintained in behalf
of an infant of the age of fourteen years or upwards, the
infant must join therein.
2. Where the value of the claim does not exceed one thousand
dollars, the special proceeding may be maintained by the
father, or mother, or some competent person with whom the
infant, incompetent person or conservatee resides, or who
has some interest in his welfare. Where, however, there is
an existing general or testamentary guardian of the property
of such infant, or a committee of the property of such
incompetent person, or a conservator of the property of such
conservatee, the proceeding may be maintained only by such
Sec. 1803. NOTICE OF PETITION.
Notice of petition shall be given, in the discretion of the
court, to such persons and in such manner as the court may
Sec. 1804. CONTENTS OF PETITION.
The petition shall state:
1. The name and residence of the petitioner, the facts
concerning his appointment and qualification as a person by
whom the proceeding is maintainable, and a statement as to
the amount of any existing undertaking given by him in such
capacity then in force and effect, whether or not any such
existing undertaking includes the value of the property
appropriated. If an undertaking had been dispensed with by
the surrogate in any case where such property was derived by
the infant through his father or mother under the instrument
by which a guardian was appointed, such fact shall be
disclosed to the court.
2. The name, age and residence of the infant, incompetent or
3. The particulars with regard to such appropriation, including
the nature and extent of the property appropriated and a
If a survey map has been filed in the appropriation
proceeding, a copy of such a map shall be attached to and
made part of the petition.
4. The nature and extent of the property, if any, entered upon,
used, occupied or injured by the state prior to completion
of such appropriation.
5. The amount offered by the state in full compensation.
6. The facts in relation to the value of the interest to be
7. Whether any previous application has been made, and, if so,
the time and disposition.
8. Where the value of the claim does not exceed one thousand
dollars, that either the petitioner or a competent,
disinterested person acquainted with the facts, whose
affidavit is made a part of the petition, has made a careful
investigation of the facts relating to the offer, and that
as a result of such investigation he has found and verily
believes that the amount of compensation so offered by the
state, for the interest or undivided interest of said
infant, incompetent person, or conservatee represents the
fair market value of the property appropriated and just
compensation therefor and for the legal damages caused by
such appropriation, and the damages, if any, sustained by
the entry upon, use or occupation of, or injury to such
property by the state prior to completion of appropriation.
In any case involving an infant of the age of fourteen years
or upwards or a conservatee, his written consent to the
acceptance in his behalf of the amount so offered shall
accompany the petition, unless the aforesaid infant is
classed in the petition as an incompetent person, in which
event such consent shall not be required.
Sec. 1805. SECURITY.
On presentation of the petition, where the value of the claim
exceeds one thousand dollars, the court shall fix the amount of
security or additional security, if any, to be given by such
general or testamentary guardian, committee or conservator, for
the faithful performance of his trust, to cover the amount of
compensation to be received by the infant, incompetent or
conservatee because of such appropriation. The court shall
dispense with the giving of security, on facts submitted in the
petition, in any case where the surrogate had done likewise as to
such guardian under the provisions of the surrogate's court
procedure act with respect to the property so appropriated.
Sec. 1806. JUDGMENT.
Upon examining into the truth of the allegations of the petition,
and hearing the allegations and proofs of the parties, presented
orally or by affidavit, as to the value of the interest of the
infant, incompetent person or conservatee in the property so
appropriated, including the legal damages caused by such
appropriation, and the damages, if any, sustained by the entry
upon, use or occupation of, or injury to such property by the
state prior to completion of appropriation, and, upon inquiring
into the facts and circumstances and duly considering the matter,
if it shall appear to the satisfaction of the court that the
amount of compensation offered to be paid by the state represents
the fair market value of the property appropriated and just
compensation for the legal damages caused by such appropriation
and the damages, if any, sustained by the entry upon, use or
occupation of, or injury to such property by the state prior to
completion of appropriation, and that the interest of the infant,
incompetent person or conservatee will be substantially promoted
by releasing or joining with others in releasing any such claim
for the amount of compensation offered therefor by the state, the
court may render a judgment authorizing petitioner to enter into
an agreement with the state, in such form as may be submitted by
the state or any agency or department thereof, for the amount of
compensation offered by the state and approved by the court and
authorizing and directing petitioner to execute and deliver to
the state a release of such claim and any documents or
instruments as may be required by the state to give full effect
to such release and authorizing and directing petitioner to
receive the amount in full payment of such claim for
Sec. 1807. PAYMENT OF COMPENSATION; RELEASE.
1. Upon the payment of such compensation by the state in the
manner provided by the judgment, the state shall be released
of and from any and all claims, damages and liability
arising from or growing out of such appropriation, and in
and to every matter and thing in anywise related to said
property so appropriated.
2. The failure to conduct the proceeding for the release of any
claim against the state of an infant, incompetent person or
conservatee as covered by this article, shall not invalidate
or render ineffective such release if the interests of the
infant, incompetent person or conservatee have not been
Sec. 1808. DISTRIBUTION OF PROCEEDS OF COMPENSATION.
1. Where compensation exceeds one thousand dollars, it shall be
deemed property of the same nature, and the disposition
thereof shall be made in the same manner, as the disposition
of proceeds of a sale, mortgage, release or lease of real
property of infant or incompetent.
2. Where compensation does not exceed one thousand dollars,
after deducting therefrom the payment of any attorney's fees
and the expenses, if any as allowed by the court, the
proceeds shall be administered by the petitioner for the use
and benefit of the infant, incompetent person or
conservatee, including the application thereof for the
purposes, in the manner, under the limitations and through
the medium provided for in the mental hygiene law of the
state of New York and official rules and regulations adopted
pursuant thereto as to funds belonging to a patient, in any
case where such ward is an incompetent person or conservatee
confined as a patient to a state institution under the
jurisdiction of the department of mental hygiene of the
state of New York.