Header:
NEW YORK CONSOLIDATED LAW SERVICE
UNCONSOLIDATED LAWS
MILITARY
CHAPTER 131. DEFENSE EMERGENCY ACT
ARTICLE III. CIVIL DEFENSE
Date:
08/31/2009
Document:
ยง 25. Powers in event of attack
1. Notwithstanding any other law, in the event of attack within the state or a state with which this state has a mutual aid compact for civil defense, to the extent it deems it necessary or proper, the commission may: (a) assume direct operational control of any or all civil defense forces; (b) order, direct, require and use the personnel, materials, facilities and services of any agency, public officer, or political subdivision of the state, or any part thereof, at any place within the state where in the opinion of the commission they are needed to effect the purposes of this article; (c) with the approval of the governor, order, direct, require and use such personnel, materials, facilities and services without the state to implement any mutual aid arrangement, agreement or compact; (d) take, use or destroy any and all real or personal property, or any interest therein, necessary or proper for the purposes of civil defense; (e) execute any or all of the civil defense powers and duties of any county or city after notifying the chief executive officer of such county or city if such notification is possible.
2. Notwithstanding any other law, subject to the plans, regulations and orders of the council and commission: (a) in the event of or in anticipation of attack within such county or city or so near thereto that it jeopardizes the safety or health of the people thereof or within a county or city with which it has agreements or arrangements for mutual aid, a county or city may provide for and compel the evacuation of any person if such person has no home or if the continued use of his home jeopardizes his own safety or that of others; (b) in the event of such attack such county or city shall control all pedestrian and vehicular traffic, transportation and communication facilities and public utilities; provide medical treatment, food, clothing, shelter and care for the injured and needy; provide for public safety and the protection and conservation of property; provide for the identification and disposition of the dead; and provide for the restoration of essential services and facilities; (c) in the event of such attack and to the extent necessary to perform such functions, and as authorized by the council or commission, it may take, use or destroy real or personal property and impress persons into service for the performance of such work.
3. The taking of private property pursuant to this section by or at the express order of the commission, whether for temporary or permanent use or for destruction, shall be in the name of and payment shall be made by the state. An appropriate record, in the form prescribed by the commission, shall be kept and a copy thereof furnished, whenever possible, to the owner from whom the property is taken. Each such owner shall be entitled to just compensation for the taking and may file a claim, to be designated as an "emergency claim," pursuant to the court of claims act, against the state for such compensation. To the extent necessary to expedite the hearing, determination and payment of such claims, the governor shall appoint, as emergency claims referees, one or more qualified attorneys admitted to practice before the courts of this state. Such referees shall be paid out of funds appropriated for such purpose at a rate to be fixed by the governor within the amount of the appropriation or allocation therefor.
When an emergency claim has been filed with the court of claims, the presiding judge forthwith may refer it to an emergency claims referee. The referee forthwith and on notice to the claimant and to the attorney-general shall set a date and place for the hearing and determination of the claim. The referee shall have all the powers now vested in the court of claims, or in a judge thereof, in the hearing and determination of the claim. His determination shall be in writing and shall be made within thirty days after the hearing shall have been closed. It shall be filed forthwith in the office of the clerk of the court of claims and shall be entered in the official records as a judgment or order of that court. Any claimant or the state shall have the right to appeal, as now provided by law, from such determination and judgment. The provisions of the court of claims act, with respect to real property taken by appropriation, shall apply to the taking of real property pursuant to this section so far as practicable.
The procedure herein provided shall not be deemed exclusive and no claim shall be required to be filed, heard and determined as an "emergency claim" if the claimant elects to proceed as otherwise provided by the court of claims act.
Such court or referee may defer action on any emergency claim pursuant to this section pending consideration by the federal civil defense administrator or any agency of the federal government of a claim based on the same taking. The award by such court or referee shall take into consideration any moneys that may be made available by the federal government with respect to such taking.
4. Except as provided in subdivision three of this section, the taking of private property by a county or city pursuant to this section shall be in the name of such county or city. An appropriate record, in the form prescribed by the commission, shall be kept and a copy thereof furnished, whenever possible, to the owner from whom the property is taken. Such county or city shall make just compensation to the owner thereof in the manner provided by law for the determination of compensation to be paid for the taking of real property by such county or city.
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