An appellate court has ruled that EDPL section 402 [B] , which authorizes a court to permit pre-condemnation access to property, also authorizes a court to require a condemnor to correct an unsafe or dangerous condition it has created. In Matter of Village of Saranac Lake, the Appellate Division upheld the right of the court to order the Village to correct a dangerous condition created during pre-acquisition access that was granted to perform emergency repairs to a sewer line, but remitted the matter to the lower court for further factual findings on the need
for such repairs.
The Village of Saranac Lake had commenced EDPL proceedings to acquire easements over certain properties for installation, repair and replacement of sewer lines. Under EDPL 402 [B] [6} the Village obtained pre-acquisition permission from the court to conduct emergency repairs of certain sewer lines. The work was performed and the EDPL process continued. However, one of the property owners brought an application to force the Village to repair certain claimed unsafe conditions created by the Village when it made its repairs. The lower court granted the relief. The Village appealed claiming the court had no authority to require the repairs and that the property owners were not entitled to compensation until after acquisition was complete.
The appellate division disagreed. Noting that there are several stages in the process of petitioning to acquire property, the court held that the pre-acquisition procedure for access under EDPL 402 [B]  also “provides that property owners will be compensated for damages to their land even if, among other things, the petition is ultimately dismissed and no award is made….It would defy common sense for a court to be authorized to permit a proposed condemnor to enter immediately upon the property of a landowner in ‘the public interests’ (EDPL 402 [B] [6}), but then maintain that said court has no power to direct further remediation in the face of established proof that the condmenor created an unsafe or dangerous condition on the land.”