Source: Laws of New York, official NYS Legislature server (public.leginfo.state.ny.us, Legislative Bill Drafting Commission). Retrieved 2026-07-07. Database current through 2026 Chapters 1-165.
§ 101. Short title. This chapter shall be known as the "New York
Limited Liability Company Law."
§ 102. Definitions. (a) "Articles of organization" means the articles
of organization filed with the department of state for the purpose of
forming a limited liability company pursuant to section two hundred
three of this chapter, as amended or restated pursuant to section two
hundred eleven or section two hundred fourteen of this chapter.
(a-1) "Affidavit of publication" means the affidavit of the printer or
publisher of a newspaper in which a publication pursuant to sections two
hundred six, eight hundred two, one thousand two hundred three, and one
thousand three hundred six of this chapter has been made. The affidavit
of publication shall be in a form substantially as follows:
"Affidavit of Publication Under Section (specify applicable
section) of the Limited Liability Company Law
State of New York,
County of ________, ss.:
The undersigned is the printer (or publisher) of ______________ (name
of newspaper), a _________ (daily or weekly) newspaper published in
________________, New York. A notice regarding _______________ (name of
limited liability company) was published in said newspaper once in each
week for six successive weeks, commencing on __________ and ending on
________. The text of the notice as published in said newspaper is as
set forth below, or in the annexed exhibit. This newspaper has been
designated by the Clerk of ________ County for this purpose.
____________ (signature)
__________(printed name),
(jurat)"
The text of the notice set forth in or annexed to each affidavit of
publication shall: (i) include only the text of the published notice,
(ii) be free of extraneous marks, and (iii) if submitted in paper form,
be printed on paper of such size, weight and color, and in ink of such
color, and in such font, and be in such other qualities and form not
inconsistent with any other provision of law as, in the judgment of the
secretary of state, will not impair the ability of the department of
state to include a legible and permanent copy thereof in its official
records. Nothing in this subdivision shall be construed as requiring the
department of state to accept for filing a document submitted in
electronic form.
(b) "Authorized foreign limited liability company" means a foreign
limited liability company authorized to do business in this state
pursuant to article eight of this chapter.
(c) "Authorized person" means a person, whether or not a member, who
is authorized by the operating agreement, or otherwise, to act on behalf
of a limited liability company or foreign limited liability company.
(d) "Bankruptcy" means bankruptcy under the United States Bankruptcy
Code, as amended, or insolvency under any state insolvency act.
(e) "Business" means every trade, occupation, profession or commercial
activity.
(e-1) "Certificate of publication" means a certificate presented on
behalf of the applicable limited liability company to the department of
state together with the affidavits of publication pursuant to section
two hundred six, eight hundred two, one thousand two hundred three, or
one thousand three hundred six of this chapter. The certificate of
publication shall be in a form substantially as follows:
"Certificate of Publication of ______ (name of limited liability
company) Under Section ______ (specify applicable section) of the
Limited Liability Company Law
The undersigned is the _________ (title) of ___________ (name of
limited liability company). The published notices described in the
annexed affidavits of publication contain all of the information
required by the above-mentioned section of the Limited Liability Company
Law. The newspapers described in such affidavits of publication satisfy
the requirements set forth in the Limited Liability Company Law and the
designation made by the county clerk. I certify the foregoing statements
to be true under penalties of perjury.
Date
Signature
Printed Name"
(f) "Contribution" means any cash, property, services rendered, or a
promissory note or other binding obligation to contribute cash or
property or to render services that a member contributes to a limited
liability company in his or her capacity as a member.
(g) "Corporation" means a corporation formed under the laws of this
state or a foreign corporation as defined in subdivision (j) of this
section.
(h) "Court" means every court and judge of competent jurisdiction with
respect to a particular matter, action or case.
(i) "Distribution" means the transfer of property by a limited
liability company to one or more of its members in his or her capacity
as a member.
(j) "Foreign corporation" means a corporation formed under the laws of
any jurisdiction, including any foreign country, other than the laws of
this state.
(k) "Foreign limited liability company" means an unincorporated
organization formed under the laws of any jurisdiction, including any
foreign country, other than the laws of this state (i) that is not
authorized to do business in this state under any other law of this
state and (ii) of which some or all of the persons who are entitled (A)
to receive a distribution of the assets thereof upon the dissolution of
the organization or otherwise or (B) to exercise voting rights with
respect to an interest in the organization have, or are entitled or
authorized to have, under the laws of such other jurisdiction, limited
liability for the contractual obligations or other liabilities of the
organization.
(l) "Foreign limited partnership" means a partnership that is formed
under the laws of any jurisdiction, including any foreign country, other
than the laws of this state and that has as partners one or more general
partners and one or more limited partners.
(m) "Limited liability company" and "domestic limited liability
company" mean, unless the context otherwise requires, an unincorporated
organization of one or more persons having limited liability for the
contractual obligations and other liabilities of the business (except as
authorized or provided in section six hundred nine or twelve hundred
five of this chapter), other than a partnership or trust, formed and
existing under this chapter and the laws of this state.
(n) "Limited partnership" means a limited partnership formed under the
laws of this state or a foreign limited partnership as defined in
subdivision (l) of this section.
(o) "Majority in interest of the members" means, unless otherwise
provided in the operating agreement, the members whose aggregate share
of the current profits of the limited liability company constitutes more
than one-half of the aggregate of such shares of all members.
(p) "Manager" means, subject to section four hundred one of this
chapter, a person designated by the members to manage the limited
liability company as provided in the operating agreement.
(q) "Member" means a person who has been admitted as a member of a
limited liability company in accordance with the terms and provisions of
this chapter and the operating agreement and has a membership interest
in a limited liability company with the rights, obligations, preferences
and limitations specified under this chapter and the operating
agreement.
(r) "Membership interest" means a member's aggregate rights in a
limited liability company, including, without limitation: (i) the
member's right to a share of the profits and losses of the limited
liability company; (ii) the member's right to receive distributions from
the limited liability company; and (iii) the member's right to vote and
participate in the management of the limited liability company.
(s) "Office of the limited liability company" means the office of the
limited liability company, the location of which is stated in the
articles of organization of a domestic limited liability company, or in
the application for authority of a foreign limited liability company.
Such office need not be a place where business activities are conducted
by such limited liability company.
(t) "One-third in interest of the members" means, unless otherwise
provided in the operating agreement, the members whose aggregate share
of the current profits of the limited liability company constitutes
one-third of the aggregate of such shares of all members.
(u) "Operating agreement" means any written agreement of the members
concerning the business of a limited liability company and the conduct
of its affairs and complying with section four hundred seventeen of this
chapter.
(v) "Other business entity" means any person other than a natural
person or domestic limited liability company.
(w) "Person" means any association, corporation, joint stock company,
estate, general partnership (including any registered limited liability
partnership or foreign limited liability partnership), limited
association, limited liability company (including a professional service
limited liability company), foreign limited liability company (including
a foreign professional service limited liability company), joint
venture, limited partnership, natural person, real estate investment
trust, business trust or other trust, custodian, nominee or any other
individual or entity in its own or any representative capacity.
(x) "Process" means judicial process and all orders, demands, notices
or other papers required or permitted by law to be personally served on
a limited liability company or foreign limited liability company, for
the purpose of acquiring jurisdiction of such limited liability company
in any action or proceeding, civil or criminal, whether judicial,
administrative, arbitrative or otherwise, in this state or in the
federal courts sitting in or for this state.
(y) "State" means a state, territory or possession of the United
States, the District of Columbia or the Commonwealth of Puerto Rico.
(z) "Two-thirds in interest of the members" means, unless otherwise
provided in the operating agreement, the members whose aggregate share
of the current profits of the limited liability company constitutes
two-thirds of the aggregate of such shares of all members.
(aa) "Foreign related limited liability partnership" has the meaning
given to it in section two of the partnership law.
(bb) "Profession" has the meaning given to it in subdivision (b) of
section twelve hundred one of this chapter.
(cc) "Registered limited liability partnership" has the meaning given
to it in section two of the partnership law.
(dd) "Foreign limited liability partnership" has the meaning given to
it in section two of the partnership law.
(ee) "Professional service limited liability company" has the meaning
given to it in subdivision (f) of section twelve hundred one of this
chapter.
(ff) "Foreign professional service limited liability company" has the
meaning given to it in subdivision (a) of section thirteen hundred one
of this chapter.
(gg) "Professional service corporation" has the meaning given to it in
subdivision (e) of section twelve hundred one of this chapter.
(hh) "Foreign professional service corporation" has the meaning given
to it in subdivision (d) of section fifteen hundred twenty-five of the
business corporation law.
§ 201. Purpose. A limited liability company may be formed under this
chapter for any lawful business purpose or purposes except to do in this
state any business for which another statute specifically requires some
other business entity or natural person to be formed or used for such
business.
§ 202. Powers. Unless the articles of organization provide otherwise
and subject to any limitations provided in this chapter or any other law
of this state, a limited liability company may:
(a) sue or be sued, or institute, participate in or defend any action
or proceeding, whether judicial, arbitrative, administrative or
otherwise, in its name;
(b) purchase, take, receive, lease or otherwise acquire, own, hold,
improve, use or otherwise deal in or with real or personal property or
an interest in real or personal property, wherever situated;
(c) sell, convey, assign, encumber, mortgage, pledge, lease, exchange,
transfer, create a security interest in or otherwise dispose of all or
part of its property or assets;
(d) purchase, take, receive, subscribe for or otherwise acquire, own,
hold, vote, employ, sell, mortgage, lend, pledge or otherwise dispose of
and otherwise use and deal in and with shares or other interests in,
securities issued by and direct or indirect obligations of:
(1) other persons; or
(2) any government, state, territory, governmental district or
municipality or of any instrumentality or subdivision of any of them;
(e) make contracts, including, but not limited to, contracts of
guaranty and suretyship, incur liabilities, borrow money at such rates
of interest as the limited liability company may determine, issue its
notes, bonds or other obligations, secure any of its obligations by
mortgage, pledge or other encumbrance of all or any part of its
property, franchises and income, make contracts of guaranty and
suretyship that are necessary or convenient to the conduct, promotion or
attainment of the business of (i) a limited liability company or other
person at least a majority of the outstanding membership or other
ownership interests of which are owned, directly or indirectly, by the
contracting limited liability company, (ii) a limited liability company
or other person that owns, directly or indirectly, at least a majority
of the outstanding membership interests of the contracting limited
liability company or (iii) a limited liability company or other person
at least a majority of the outstanding membership or other ownership
interests of which are owned, directly or indirectly, by a limited
liability company or other person that owns, directly or indirectly, at
least a majority of the outstanding membership interests of the
contracting limited liability company, which contracts of guaranty and
suretyship shall be deemed to be necessary or convenient to the conduct,
promotion or attainment of the business of the contracting limited
liability company and make other contracts of guaranty and suretyship
that are necessary or convenient to the conduct, promotion or attainment
of the business of the contracting limited liability company. A limited
liability company may make any contracts of guaranty and suretyship that
are not necessary or convenient to the conduct, promotion or attainment
of the business of the contracting limited liability company upon the
vote of the percentage in interest of the members or class or classes of
members provided in the operating agreement, or if no such percentage is
so stated, upon the vote of a majority in interest of the members
entitled to vote thereon; provided, however, that the operating
agreement may provide that no such vote is required;
(f) lend money for any lawful purpose, invest or reinvest its funds,
or take and hold real or personal property as security for the payment
of funds so loaned or invested;
(g) conduct its business, carry on its operations, maintain offices
and exercise the powers granted by this chapter in any state, foreign
country or other jurisdiction;
(h) elect or appoint managers, employees and agents of the limited
liability company, define their duties and fix their compensation;
(i) assist, lend money to and transact other business with a member,
manager, agent or employee of such limited liability company;
(j) make and alter its operating agreement, not inconsistent with its
articles of organization or with the laws of this state, concerning the
business of the limited liability company and the conduct of its
affairs;
(k) indemnify a member or manager or any other person;
(l) pay pensions and establish pension plans, pension trusts,
profit-sharing plans, profit-sharing trusts, equity bonus plans, equity
option plans and other incentive plans for any of its members, managers,
employees, agents or consultants or any of the directors, officers,
managers, employees, agents or consultants of its affiliates;
(m) make donations for the public welfare or for charitable,
scientific, religious, civic, educational or similar purposes;
(n) transact any lawful business in aid of governmental policy;
(o) be a promoter, shareholder, general partner, limited partner,
member, associate or manager of any association, corporation,
partnership, limited partnership, limited liability company, joint
venture, trust or other entity or enterprise;
(p) cease its activities, cancel its articles of organization or
dissolve; and
(q) have and exercise all powers, in addition to those set forth in
subdivisions (a) through (p) of this section, not inconsistent with law,
necessary or convenient to effect any or all of the purposes for which
the limited liability company is formed. In order for a limited
liability company to exercise the powers enumerated in this chapter, it
is not necessary to set forth such powers in the articles of
organization.
§ 203. Formation. (a) One or more persons may act as an organizer or
organizers to form a limited liability company by (i) preparing the
articles of organization of such limited liability company in accordance
with subdivision (e) of this section, (ii) executing such articles of
organization in accordance with section two hundred seven of this
article and (iii) filing such articles, entitled "Articles of
organization of... (name of limited liability company) under section two
hundred three of the Limited Liability Company Law," in accordance with
section two hundred nine of this article.
(b) An organizer may, but need not be, a member of the limited
liability company that he or she forms.
(c) At the time of its formation, a limited liability company must
have at least one member.
(d) A limited liability company is formed at the time of the filing of
the initial articles of organization with the department of state or at
any later time specified in the articles of organization, not to exceed
sixty days from the date of such filing. The filing of the articles of
organization shall, in the absence of actual fraud, be conclusive
evidence of the formation of the limited liability company as of the
time of filing or effective date if later, except in an action or
special proceeding brought by the attorney general. A limited liability
company formed under this chapter shall be a separate legal entity, the
existence of which as a separate legal entity shall continue until the
cancellation of the limited liability company's articles of
organization.
(e) The articles of organization of a limited liability company shall
set forth:
(1) the name of the limited liability company;
(2) the county within this state in which the office of the limited
liability company is to be located or if the limited liability company
shall maintain more than one office in this state, the county in which
the principal office of the limited liability company is to be located;
(3) if the limited liability company is to have a specific date of
dissolution in addition to the events of dissolution set forth in
section seven hundred one of this chapter, the latest date on which the
limited liability company is to dissolve;
(4) a designation of the secretary of state as agent of the limited
liability company upon whom process against it may be served and the
post office address within or without this state to which the secretary
of state shall mail a copy of any process against the limited liability
company served upon him or her. The limited liability company may
include an email address to which the secretary of state shall email a
notice of the fact that process against it has been electronically
served upon him or her;
(5) if the limited liability company is to have a registered agent,
its name and address within this state and a statement that the
registered agent is to be the agent of the limited liability company
upon whom process against it may be served;
(6) if all or specified members are to be liable in their capacity as
members for all or specified debts, obligations or liabilities of the
limited liability company as authorized pursuant to section six hundred
nine of this chapter, a statement that all or specified members are so
liable for such debts, obligations or liabilities in their capacity as
members of the limited liability company as authorized pursuant to
section six hundred nine of this chapter; and
(7) any other provisions, not inconsistent with law, that the members
elect to include in the articles of organization for the regulation of
the internal affairs of the limited liability company, including, but
not limited to, (A) the business purpose for which the limited liability
company is formed, (B) a statement of whether there are limitations on
the authority of members or managers or a class or classes thereof to
bind the limited liability company and (C) any provisions that are
required or permitted to be included in the operating agreement of the
limited liability company pursuant to section four hundred seventeen of
this chapter.
§ 204. Limited liability company name. The name of each limited
liability company as set forth in its articles of organization:
(a) shall contain without abbreviation the words "Limited Liability
Company" or the abbreviation "L.L.C." or "LLC";
(b) (1) shall be such as to distinguish it from the name of (i) any
domestic limited liability company, (ii) any authorized foreign limited
liability company or (iii) a fictitious name of an authorized foreign
limited liability company filed pursuant to section eight hundred two of
this chapter, in each case, as such names appear on the index of names
of existing domestic and authorized foreign limited liability companies
of any type or kind, including fictitious names of authorized foreign
limited liability companies filed pursuant to section eight hundred two
of this chapter, in the department of state, or names the right to which
are reserved;
(2) shall be such as to distinguish it from (i) the names of domestic
business corporations, domestic not-for-profit corporations and other
domestic corporations of any type or kind that are formed by a filing in
the department of state, (ii) the names of authorized foreign business
corporations, authorized foreign not-for-profit corporations and other
authorized foreign corporations of any type or kind that are authorized
to do business or conduct activities in this state by reason of a filing
in the department of state, (iii) the fictitious names of authorized
foreign business corporations, authorized foreign not-for-profit
corporations and other authorized foreign corporations of any type or
kind that are authorized to do business or conduct activities in this
state by reason of a filing in the department of state, (iv) the names
of domestic limited partnerships, (v) the names of authorized foreign
limited partnerships, or (vi) the fictitious names of authorized foreign
limited partnerships, in each case, as such names appear on the index of
names of existing domestic and authorized foreign corporations of any
type or kind, including fictitious names of authorized foreign
corporations of any type or kind, in the department of state, or on the
index of names of existing domestic or authorized foreign limited
partnerships, including fictitious names of authorized foreign limited
partnerships, in the department of state, or names the rights to which
are reserved; provided, however, that no limited liability company that
was formed prior to the effective date of this paragraph and no foreign
limited liability company that was qualified to do business in this
state prior to such effective date shall be required to change the name
or fictitious name it had on such effective date solely by reason of
such name or fictitious name being indistinguishable from the name or
fictitious name of any domestic or authorized foreign corporation or
limited partnership or from any name the right to which is reserved by
or on behalf of any domestic or foreign corporation or limited
partnership;
(c) shall, unless the limited liability company or foreign limited
liability company shall have complied with the provisions of section one
hundred thirty of the general business law, be the name used by the
limited liability company in its conduct of business;
(d) shall not contain any word or phrase, or any abbreviation or
derivative thereof, the use of which is prohibited or restricted by any
other statute of this state, unless in the latter case the restrictions
have been complied with;
(e) shall not contain the following phrases or any abbreviation or
derivative thereof:
board of trade state police
chamber of commerce state trooper
community renewal tenant relocation
corporation urban development
incorporated urban relocation
partnership
(f) shall not contain the following words, or any abbreviation or
derivative thereof:
acceptance guaranty
annuity indemnity
assurance insurance
attorney investment
bank lawyer
benefit loan
bond mortgage
casualty savings
doctor surety
endowment title
fidelity trust
finance underwriter
unless the approval of the superintendent of financial services is
attached to the articles of organization or unless the word "doctor" or
"lawyer" or an abbreviation or derivative thereof is used in a context
that clearly denotes a purpose other than the practice of law or
medicine;
(g) shall not, unless the approval of the state department of social
services is attached to the articles of organization or application for
authority, contain the word "blind" or "handicapped." Such approval
shall be granted by the state department of social services if in its
opinion the word "blind" or "handicapped" as used in the limited
liability company's proposed name will not tend to mislead or confuse
the public into believing that the limited liability company is
organized for charitable or nonprofit purposes related to the blind or
the handicapped; and
(h) shall not, unless the approval of the attorney general is attached
to the articles of organization or application for authority, contain
the word "exchange" or any abbreviation or derivative thereof. Such
approval shall not be granted by the attorney general if in his or her
opinion the use of the word "exchange" in the limited liability
company's proposed name would falsely imply that the limited liability
company conducts its business at a place where trade is carried on in
securities or commodities by brokers, dealers or merchants.
(i) shall not contain the following terms: "school," "education,"
"elementary," "secondary," "kindergarten," "prekindergarten,"
"preschool," "nursery school," "museum," "history," "historical,"
"historical society," "arboretum," "library," "college," "university" or
other term restricted by section two hundred twenty-four of the
education law; "conservatory," "academy," or "institute" or any
abbreviation or derivative of such terms, shall have endorsed thereon or
annexed thereto the consent of the commissioner of education.
§ 205. Reservation of name. (a) Subject to section two hundred four of
this article, the exclusive right to the use of a name may be reserved
by:
(1) any person intending to form or cause the formation of a domestic
limited liability company under this chapter;
(2) any domestic limited liability company or any authorized foreign
limited liability company intending to change its name;
(3) any foreign limited liability company intending to apply for
authority to do business in this state and to adopt that name; and
(4) any person intending to form a foreign limited liability company
and intending to have it apply for authority to do business in this
state.
(b) A fictitious name for use pursuant to section eight hundred two of
this chapter may be reserved by:
(1) any foreign limited liability company intending to apply for
authority to do business in this state pursuant to section eight hundred
two of this chapter;
(2) any authorized foreign limited liability company intending to
change the fictitious name under which it does business in this state;
and
(3) any authorized foreign limited liability company that has changed
its name in its jurisdiction, such new name not being available in this
state.
(c) Application to reserve a limited liability company name shall be
delivered to the department of state. It shall set forth the name and
address of the applicant, the name to be reserved and a statement of the
basis for the application under subdivision (a) or (b) of this section.
The secretary of state may require that there be included in the
application a statement as to the nature of the business to be conducted
by the limited liability company it being sufficient to state, either
alone, or with other purposes, that the limited liability company
intends to conduct any lawful act or activity for which limited
liability companies may be formed under this chapter, provided that it
also state that it is not intended to be formed to engage in any act or
activity requiring the consent or approval of any state official,
department, board or agency or other body without such consent or
approval first being obtained. If the name is available for use by the
applicant for a limited liability company, the department of state shall
reserve the name for the use of the applicant for a period of sixty days
and issue a certificate of reservation. The restrictions and
qualifications set forth in section two hundred four of this article are
not waived by the issuance of a certificate of reservation. The
certificate of reservation shall include the name of the applicant, the
name reserved and the date of reservation. The certificate of
reservation (or in lieu thereof an affidavit by the applicant or by his
or her agent or attorney that the certificate of reservation has been
lost or destroyed) shall accompany the articles of organization or the
application for authority when either is delivered to the department of
state. The secretary of state may extend the reservation for additional
periods of not more than sixty days each, upon the written request of
the applicant or his or her attorney in fact or agent delivered to the
department of state and filed before expiration of the reservation
period then in effect. Such request shall have attached to it the
certificate of reservation. No more than two such extensions shall be
granted.
(d) Upon request of the applicant, delivered to the department of
state before the expiration of the reserved period, the department shall
cancel the reservation.
(e) Upon the receipt of an application to reserve a limited liability
company name by the department of state pursuant to this section, the
department shall confirm such receipt by mail or email to the applicant
at the address or email address set forth in such application. In
addition, the department shall include, but not be limited to including,
the following information in such mailing or email:
(1) contact information, including, but not limited to website,
address and telephone number, of the New York state small business
development center serving their region;
(2) contact information, including, but not limited to website,
address and telephone number, of the New York state entrepreneurship
assistance center serving their region;
(3) contact information, including, but not limited to the website,
address and telephone number of business mentor NY; and
(4) contact information, including, but not limited to website,
address and telephone number, of empire state development. Information
regarding empire state development shall include direction to resources
available on such website to support and assist new businesses.
§ 206. Affidavits of publication. (a) Within one hundred twenty days
after the effectiveness of the initial articles of organization as
determined pursuant to subdivision (d) of section two hundred three of
this article, a copy of the same or a notice containing the substance
thereof shall be published once in each week for six successive weeks,
in two newspapers of the county in which the office of the limited
liability company is located, one newspaper to be printed weekly and one
newspaper to be printed daily, to be designated by the county clerk.
When such county is located within a city with a population of one
million or more, such designation shall be as though the copy or notice
were a notice or advertisement of judicial proceedings. Proof of the
publication required by this subdivision, consisting of the certificate
of publication of the limited liability company with the affidavits of
publication of such newspapers annexed thereto, must be filed with the
department of state. Notwithstanding any other provision of law, if the
office of the limited liability company is located in a county wherein a
weekly or daily newspaper of the county, or both, has not been so
designated by the county clerk, then the publication herein required
shall be made in a weekly or daily newspaper of any county, or both, as
the case may be, which is contiguous to, such county, provided that any
such newspaper meets all the other requirements of this subdivision. A
copy or notice published in a newspaper other than the newspaper or
newspapers designated by the county clerk shall not be deemed to be one
of the publications required by this subdivision. The notice shall
include: (1) the name of the limited liability company; (2) the date of
filing of the articles of organization with the department of state and,
if the date of formation is not the date of filing of the articles of
organization, the date of the formation of the limited liability
company; (3) the county within this state, in which the office of the
limited liability company is located; (3-a) the street address of the
principal business location, if any; (4) a statement that the secretary
of state has been designated as agent of the limited liability company
upon whom process against it may be served and the post office address
within or without this state to which the secretary of state shall mail
a copy of any process against it served upon him or her; (5) if the
limited liability company is to have a registered agent, his or her name
and address within this state and a statement that the registered agent
is to be the agent of the limited liability company upon whom process
against it may be served; (6) if the limited liability company is to
have a specific date of dissolution in addition to the events of
dissolution set forth in section seven hundred one of this chapter, the
latest date upon which the limited liability company is to dissolve; and
(7) the character or purpose of the business of such limited liability
company. Where, at any time after completion of the first of the six
weekly publications required by this subdivision and prior to the
completion of the sixth such weekly publication, there is a change in
any of the information contained in the copy or notice as published, the
limited liability company may complete the remaining publications of the
original copy or notice, and the limited liability company shall not be
required to publish any further or amended copy or notice. Where, at any
time after completion of the six weekly publications required by this
subdivision, there is a change to any of the information contained in
the copy or notice as published, no further or amended publication or
republication shall be required to be made. If within one hundred twenty
days after its formation, proof of such publication, consisting of the
certificate of publication of the limited liability company with the
affidavits of publication of the newspapers annexed thereto has not been
filed with the department of state, the authority of such limited
liability company to carry on, conduct or transact any business in this
state shall be suspended, effective as of the expiration of such one
hundred twenty day period. The failure of a limited liability company to
cause such copy or notice to be published and such certificate of
publication and affidavits of publication to be filed with the
department of state within such one hundred twenty day period or the
suspension of such limited liability company's authority to carry on,
conduct or transact business in this state pursuant to this subdivision
shall not limit or impair the validity of any contract or act of such
limited liability company, or any right or remedy of any other party
under or by virtue of any contract, act or omission of such limited
liability company, or the right of any other party to maintain any
action or special proceeding on any such contract, act or omission, or
right of such limited liability company to defend any action or special
proceeding in this state, or result in any member, manager or agent of
such limited liability company becoming liable for the contractual
obligations or other liabilities of the limited liability company. If,
at any time following the suspension of a limited liability company's
authority to carry on, conduct or transact business in this state
pursuant to this subdivision, such limited liability company shall cause
proof of publication in substantial compliance with the provisions
(other than the one hundred twenty day period) of this subdivision,
consisting of the certificate of publication of the limited liability
company with the affidavits of publication of the newspapers annexed
thereto, to be filed with the department of state, such suspension of
such limited liability company's authority to carry on, conduct or
transact business shall be annulled.
(b)(1) A limited liability company which was formed prior to the
effective date of this subdivision and which complied with the
publication and filing requirements of this section as in effect prior
to such effective date shall not be required to make any publication or
republication or any filing under subdivision (a) of this section, and
shall not be subject to suspension pursuant to this section.
(2) Within twelve months after the effective date of this subdivision,
a limited liability company, which was formed prior to such effective
date, and which did not comply with the publication and filing
requirements of this section as in effect prior to such effective date,
shall publish a copy of its articles of organization or a notice
containing the substance thereof in the manner required (other than the
one hundred twenty day period) by this section as in effect prior to
such effective date and file proof of such publication, consisting of
the certificate of publication of the limited liability company with the
affidavits of publication of the newspapers annexed thereto, with the
department of state.
(3) If a limited liability company that is subject to the provisions
of paragraph two of this subdivision fails to file the required proof of
publication with the department of state within twelve months after the
effective date of this subdivision, its authority to carry on, conduct
or transact any business in this state shall be suspended, effective as
of the expiration of such twelve month period.
(4) The failure of a limited liability company that is subject to the
provisions of paragraph two of this subdivision to fully comply with the
provisions of said paragraph two or the suspension of such limited
liability company's authority to carry on, conduct or transact any
business in this state pursuant to paragraph three of this subdivision
shall not impair or limit the validity of any contract or act of such
limited liability company, or any right or remedy of any other party
under or by virtue of any contract, act or omission of such limited
liability company, or the right of any other party to maintain any
action or special proceeding on any such contract, act or omission, or
right of such limited liability company to defend any action or special
proceeding in this state, or result in any member, manager or agent of
such limited liability company becoming liable for the contractual
obligations or other liabilities of the limited liability company.
(5) If, at any time following the suspension of a limited liability
company's authority to carry on, conduct or transact business in this
state, pursuant to paragraph three of this subdivision, such limited
liability company shall cause proof of publication in substantial
compliance with the provisions (other than the one hundred twenty day
period) of subdivision (a) of this section, consisting of the
certificate of publication of the limited liability company with the
affidavits of publication of the newspapers annexed thereto, to be filed
with the department of state, such suspension of such limited liability
company's authority to carry on, conduct or transact business shall be
annulled.
(6) For the purposes of this subdivision, a limited liability company
which was formed prior to the effective date of this subdivision shall
be deemed to have complied with the publication and filing requirements
of this section as in effect prior to such effective date if (i) the
limited liability company was formed on or after January first, nineteen
hundred ninety-nine and prior to such effective date and the limited
liability company filed at least one affidavit of the printer or
publisher of a newspaper with the department of state at any time prior
to such effective date, or (ii) the limited liability company was formed
prior to January first, nineteen hundred ninety-nine, without regard to
whether the limited liability company did or did not file any affidavit
of the printer or publisher of a newspaper with the secretary of state.
(c) The information in a notice published pursuant to this section
shall be presumed to be in compliance with and satisfaction of the
requirements of this section.
§ 207. Execution of articles or certificates. (a) Each article or
certificate required by this chapter to be filed with the department of
state shall be executed in the following manner:
(1) the initial articles of organization must be signed by an
organizer or organizers of the limited liability company;
(2) a certificate of amendment must be signed by at least one member,
manager or authorized person of the limited liability company;
(3) restated articles of organization or amended and restated articles
of organization must be signed by at least one member, manager or
authorized person of the limited liability company;
(4) a certificate of correction must be signed by at least one member,
manager or authorized person of the limited liability company;
(5) a certificate of cancellation must be signed by at least one
member, manager or authorized person of the limited liability company;
and
(6) all other certificates must be signed by at least one member,
manager or authorized person of the limited liability company.
(b) Any person may sign any articles or certificate by an attorney in
fact. Powers of attorney relating to the signing of articles or a
certificate by an attorney in fact need not be filed with the department
of state or provided as evidence of authority by the person filing but
must be retained in the records of the limited liability company.
(c) Each article or certificate must be signed.
(d) Each article or certificate must include the name and capacity of
each signer.
§ 208. Execution, amendment or cancellation by judicial act. If a
person required by section two hundred seven of this article to execute
articles or a certificate fails or refuses to do so, any member or any
permitted assignee of a membership interest who is adversely affected by
such failure or refusal may petition the supreme court in the judicial
district in which the office of the limited liability company is or is
to be located to direct the execution of such articles or certificate.
If the court finds that such articles or certificate should be executed
and that such person has failed or refused to execute such articles or
certificate, it shall order such person to file the appropriate articles
or certificate.
§ 209. Filing with the department of state. A signed articles of
organization and any signed certificate of amendment or other
certificates filed pursuant to this chapter or of any judicial decree of
amendment or cancellation shall be delivered to the department of state.
If the instrument that is delivered to the department of state for
filing complies as to form with the requirements of law and the filing
fee required by any statute of this state in connection therewith has
been paid, the instrument shall be filed and indexed by the department
of state. The department of state shall not review such articles or
certificates for legal sufficiency; its review shall be limited to
determining that the form has been completed.
§ 210. Liability for false statement in articles or certificates. (a)
If any articles of organization, certificate of amendment or other
certificate filed pursuant to this chapter contains a materially false
statement, one who suffers loss by reasonable reliance on the statement
may recover damages for the loss from:
(1) any person who executes the articles of organization or
certificate, or caused another to execute it on his or her behalf, and
knew, and any manager who knew of the filing of such articles or
certificate and who knew or should have known with the exercise of
reasonable care and diligence, the statement to be false in any material
respect at the time the articles or certificate was executed; and
(2) any manager who thereafter knows of the filing of such articles or
certificate and who knows or should have known with the exercise of
reasonable care and diligence that any arrangement or other fact
described in such articles or certificate has changed, making the
statement false in any material respect.
(b) Notwithstanding paragraph two of subdivision (a) of this section,
no person shall have any liability for failing to cause the amendment or
cancellation of the articles of organization or a certificate to be
filed or failing to file a petition for its amendment or cancellation,
if the articles of organization, certificate or petition is filed within
ninety days of the time when that person knew or should have known that
the statement in the articles of organization or certificate was false
in any material respect.
§ 211. Amendment of articles of organization. (a) A limited liability
company may amend its articles of organization, from time to time, in
any and as many respects as may be desired by (i) preparing a
certificate of amendment, entitled "Certificate of amendment of the
articles of organization of... (name of limited liability company) under
section two hundred eleven of the Limited Liability Company Law," in
accordance with this section, (ii) executing such certificate of
amendment in accordance with section two hundred seven of this article
and (iii) filing such certificate of amendment in accordance with
section two hundred nine of this article.
(b) The certificate of amendment may set forth only such provisions as
might be lawfully contained in the initial articles of organization
filed at the time of making such amendment.
(c) The certificate of amendment shall set forth:
(1) the name of the limited liability company and, if it has been
changed, the name under which it was formed;
(2) the date of filing its initial articles of organization; and
(3) each amendment effected thereby, setting forth the subject matter
of each provision of the articles of organization that is to be amended
or eliminated and the full text of the provision or provisions, if any,
which are to be substituted or added.
(d) In particular, but without limiting the general power of amendment
as stated in subdivision (b) of this section, a limited liability
company shall amend its articles of organization no later than ninety
days after the happening of any of the following events:
(1) a change in the name of the limited liability company;
(2) a change in the county within this state in which the office of
the limited liability company is to be located;
(3) a change in the latest date, if any, on which the limited
liability company is to dissolve;
(4) the continuation of the limited liability company under section
seven hundred one of this chapter after an event of dissolution;
(5) a change in the name or street address of its registered agent in
the state if such change is made other than pursuant to section three
hundred two of this chapter;
(6) a change in the post office address to which the secretary of
state shall mail a copy of any process against the limited liability
company served upon him or her if such change is made other than
pursuant to section three hundred one of this chapter;
(7) a change in whether the limited liability company is to be managed
by one or more members of a class or classes of members or by one or
more managers or a class or classes of managers;
(8) the discovery of a materially false or inaccurate statement in the
articles of organization;
(9) the decision to change any other statement in the articles of
organization; and
(10) to specify, change or delete the email address to which the
secretary of state shall email a notice of the fact that process against
the limited liability company has been electronically served upon him or
her.
(e) Unless otherwise provided in this chapter, a certificate of
amendment shall be effective at the time of its filing with the
department of state.
§ 211-A. Certificate of change. (a) A limited liability company may
amend its articles of organization from time to time to (i) specify or
change the location of the limited liability company's office; (ii)
specify or change the post office address to which the secretary of
state shall mail a copy of any process against the limited liability
company served upon him or her; (iii) specify, change or delete the
email address to which the secretary of state shall email a notice of
the fact that process against the limited liability company has been
electronically served upon him or her; and (iv) make, revoke or change
the designation of a registered agent, or specify or change the address
of the registered agent. Any one or more such changes may be
accomplished by filing a certificate of change which shall be entitled
"Certificate of Change of ....... (name of limited liability company)
under section 211-A of the Limited Liability Company Law" and shall be
signed and delivered to the department of state. It shall set forth:
(1) the name of the limited liability company, and if it has been
changed, the name under which it was formed;
(2) the date the articles of organization were filed by the department
of state; and
(3) each change effected thereby.
(b) A certificate of change which changes only the post office address
to which the secretary of state shall mail a copy of any process against
a limited liability company served upon him or her, and/or the email
address to which the secretary of state shall email a notice of the fact
that process against it has been electronically served upon the
secretary of state and/or the address of the registered agent, provided
such address being changed, and/or the email address being changed is
the email address of a person, partnership or other corporation whose
email address, as agent, is the email address to be changed, is the
address of a person, partnership or corporation whose address, as agent,
is the address to be changed or who has been designated as registered
agent for such limited liability company may be signed and delivered to
the department of state by such agent. The certificate of change shall
set forth the statements required under subdivision (a) of this section;
that a notice of the proposed change was mailed to the domestic limited
liability company by the party signing the certificate not less than
thirty days prior to the date of delivery to the department of state and
that such domestic limited liability company has not objected thereto;
and that the party signing the certificate is the agent of such limited
liability company to whose address the secretary of state is required to
mail copies of process, and/or the agent of the limited liability
company to whose email address of the secretary of state is required to
email a notice of the fact that process against it has been
electronically served upon the secretary of state, or the registered
agent, if such be the case. A certificate signed and delivered under
this subdivision shall not be deemed to effect a change of location of
the office of the limited liability company in whose behalf such
certificate is filed.
§ 212. Certificate of correction. The articles of organization, any
certificate or any other instrument relating to a domestic or foreign
limited liability company filed with the department of state under this
chapter may be corrected with respect to any informality or error
apparent on the face, incorrect statement or defect in the execution
thereof, including the deletion of any matter not permitted to be stated
therein. A certificate, entitled "Certificate of correction of... (title
of articles or certificate and name of limited liability company) under
section two hundred twelve of the Limited Liability Company Law," shall
be signed and delivered to the department of state. It shall set forth
the name of the limited liability company, the date the articles or
certificate to be corrected was filed by the department of state, a
statement as to the nature of the informality, error, incorrect
statement or defect, the provision in the articles or certificate as
corrected or eliminated and, if the execution was defective, the proper
execution. The filing of the certificate of correction with the
department of state shall not alter the effective date of the instrument
being corrected and shall not affect any right or liability accrued or
incurred before such filing. A name of a limited liability company may
not be changed or corrected pursuant to this section.
§ 213. Authorization of amendment of articles of organization. (a)
Except as provided in the operating agreement, an amendment of the
articles of organization shall be authorized by at least a majority in
interest of the members entitled to vote thereon.
(b) Notwithstanding subdivision (a) of this section, unless the
operating agreement provides otherwise (including, but not limited to,
by restricting or enlarging the management powers or responsibilities of
one or more managers or classes of managers), if the limited liability
company is managed by one or more managers then any of the following
amendments may be authorized by a majority of such managers:
(1) to change the name or street address of the registered agent, if
any, of the limited liability company in the state;
(2) to change the post office address to which the secretary of state
shall mail a copy of any process against the limited liability company
served upon him or her; and
(3) to correct any error in the articles of organization pursuant to
section two hundred twelve of this article.
§ 214. Restated articles of organization. (a) A limited liability
company may at any time, and from time to time, restate in a single
instrument entitled "Restated Articles of Organization of ....(name of
limited liability company) under section two hundred fourteen of the
Limited Liability Company Law", the text of its articles of
organization, without making any amendment thereby. Alternatively, a
limited liability company may restate in a single instrument the text of
its articles of organization and as amended thereby to effect any one or
more of the amendments authorized by this article.
(b) The restated or amended and restated articles of organization, as
the case may be, shall be executed in accordance with section two
hundred seven of this article.
(c) The restated articles of organization shall be filed with the
department of state in accordance with section two hundred nine of this
article and shall set forth:
(1) the name of the limited liability company and, if it has been
changed, the name under which it was formed;
(2) the date of filing of its articles of organization; and
(3) if the restated articles of organization restate the text of the
articles of organization without making any amendments, then a statement
that the text of the articles of organization is thereby restated
without amendment to read as therein set forth in full; or
(4) if the restated articles restate the text of the articles of
organization, and is amended thereby, then a statement that the articles
of organization is amended to effect one or more of the amendments
authorized by this chapter, specifying each such amendment and that the
text of the articles of organization is thereby restated as amended to
read as therein set forth in full.
(d) Any amendments effected in connection with the restatement of the
articles of organization shall be subject to any other provisions of
this chapter, including, but not limited to, section two hundred
thirteen of this article, that would apply if a separate certificate of
amendment were filed to effect such amendment.
(e) Unless otherwise provided in this chapter, the restated or amended
and restated articles of organization, as the case may be, shall be
effective at the time of its filing with the department of state.
§ 301. Statutory designation of secretary of state as agent for
service of process. (a) The secretary of state shall be the agent of
every domestic limited liability company that has filed with the
department of state articles of organization making such designation and
every foreign limited liability company upon which process may be served
pursuant to this chapter.
(b) No domestic or foreign limited liability company may be formed or
authorized to do business in this state under this chapter unless its
articles of organization or application for authority designates the
secretary of state as such agent.
(c) Any designated post office address to which the secretary of state
shall mail a copy of process served upon him or her as agent of a
domestic limited liability company or a foreign limited liability
company shall continue until the filing of a certificate or other
instrument under this chapter directing the mailing to a different post
office address and any designated email address to which the secretary
of state shall email a notice of the fact that process has been
electronically served upon him or her as agent of a domestic limited
liability company or foreign limited liability company, shall continue
until the filing of a certificate or other instrument under this chapter
changing or deleting such email address.
(e) (1) Except as otherwise provided in this subdivision, every
limited liability company to which this chapter applies, shall
biennially in the calendar month during which its articles of
organization or application for authority were filed, or effective date
thereof if stated, file on forms prescribed by the secretary of state, a
statement setting forth the post office address within or without this
state to which the secretary of state shall mail a copy of any process
accepted against it served upon him or her. Such address shall supersede
any previous address on file with the department of state for this
purpose.
(2) The commissioner of taxation and finance and the secretary of
state may agree to allow limited liability companies to include the
statement specified in paragraph one of this subdivision on tax reports
filed with the department of taxation and finance in lieu of biennial
statements and in a manner prescribed by the commissioner of taxation
and finance. If this agreement is made, starting with taxable years
beginning on or after January first, two thousand sixteen, each limited
liability company required to file the statement specified in paragraph
one of this subdivision that is subject to the filing fee imposed by
paragraph three of subsection (c) of section six hundred fifty-eight of
the tax law shall provide such statement annually on its filing fee
payment form filed with the department of taxation and finance in lieu
of filing a statement under this section with the department of state.
However, each limited liability company required to file a statement
under this section must continue to file the biennial statement required
by this section with the department of state until the limited liability
company in fact has filed a filing fee payment form with the department
of taxation and finance that includes all required information. After
that time, the limited liability company shall continue to provide
annually the statement specified in paragraph one of this subdivision on
its filing fee payment form in lieu of the biennial statement required
by this subdivision.
(3) If the agreement described in paragraph two of this subdivision is
made, the department of taxation and finance shall deliver to the
department of state the statement specified in paragraph one of this
subdivision contained on filing fee payment forms. The department of
taxation and finance must, to the extent feasible, also include the
current name of the limited liability company, department of state
identification number for such limited liability company, the name,
signature and capacity of the signer of the statement, name and street
address of the filer of the statement, and the email address, if any, of
the filer of the statement.
301-A. Resignation for receipt of process. (a) The party (or his/her
legal representative) whose post office address has been supplied by a
domestic limited liability company or foreign limited liability company
as its address for process may resign. A certificate entitled
"Certificate of Resignation for Receipt of Process under section 301-A
of the Limited Liability Company Law" shall be signed by such party and
delivered to the department of state. It shall set forth:
(1) the name of the limited liability company and the date that its
articles of organization or application for authority was filed by the
department of state.
(2) that the address of the party has been designated by the limited
liability company as the post office address to which the secretary of
state shall mail a copy of any process served on the secretary of state
as agent for such limited liability company, and that such party wishes
to resign.
(3) that sixty days prior to the filing of the certificate of
resignation with the department of state the party has sent a copy of
the certificate of resignation for receipt of process by registered or
certified mail to the address of the registered agent of the designated
limited liability company, if other than the party filing the
certificate of resignation, for receipt of process, or if the resigning
limited liability company has no registered agent, then to the last
address of the designated limited liability company known to the party,
specifying the address to which the copy was sent. If there is no
registered agent and no known address of the designating limited
liability company, the party shall attach an affidavit to the
certificate stating that a diligent but unsuccessful search was made by
the party to locate the limited liability company, specifying what
efforts were made.
(4) that the designated limited liability company is required to
deliver to the department of state a certificate of amendment or change
providing for the designation by the limited liability company of a new
address, and that upon its failure to file such certificate its
authority to do business in this state shall be suspended.
(b) Upon the failure of the designating limited liability company to
file a certificate of amendment or certificate of change providing for
the designation by the limited liability company of the new address
after the filing of a certificate of resignation for receipt of process
with the secretary of state, its authority to do business in this state
shall be suspended.
(c) The filing by the department of state of a certificate of
amendment or certificate of change or the filing of a statement under
section three hundred one of this article providing for a new address by
a designating limited liability company shall annul the suspension and
its authority to do business in this state shall be restored and
continued as if no suspension had occurred.
(d) The resignation for receipt of process shall become effective upon
the filing by the department of state of a certificate of resignation
for receipt of process.
(e)(1) In any case in which a limited liability company suspended
pursuant to this section would be subject to the personal or other
jurisdiction of the courts of this state under article three of the
civil practice law and rules, process against such limited liability
company may be served upon the secretary of state as its agent pursuant
to this section. Such process may be issued in any court in this state
having jurisdiction of the subject matter.
(2) Service of such process upon the secretary of state shall be made
by personally delivering to and leaving with him or his deputy, or with
any person authorized by the secretary of state to receive such service,
at the office of the department of state in the city of Albany, a copy
of such process together with the statutory fee, which fee shall be a
taxable disbursement. Such service shall be sufficient if notice thereof
and a copy of the process are:
(i) delivered personally within or without that state to such limited
liability company by a person and in the manner authorized to serve
process by law of the jurisdiction in which service is made, or
(ii) sent by or on behalf of the plaintiff to such limited company by
registered or certified mail with return receipt requested to the last
address of such limited liability company known to the plaintiff.
(3)(i) Where service of a copy of process was effected by personal
service, proof of service shall be by affidavit of compliance with the
section filed, together with the process, within thirty days after such
service, with the clerk of the court in which the action or special
proceeding is pending. Service of process shall be complete ten days
after such papers are filed with the clerk of the court.
(ii) Where service of a copy of process was effected by mailing in
accordance with this section, proof of service shall be by affidavit of
compliance with this section filed, together with the process, within
thirty days after receipt of the return receipt signed by the limited
liability company or other official proof of delivery or of the original
envelope mailed. If a copy of the process is mailed in accordance with
this section, there shall be filed with the affidavit of compliance
either the return receipt signed by such limited company or other
official proof of delivery, if acceptance was refused by it, the
original envelope with a notation by the postal authorities that
acceptance was refused. If acceptance was refused a copy of the notice
and process together with notice of the mailing by registered or
certified mail and refusal to accept shall be promptly sent to such
limited liability company at the same address by ordinary mail and the
affidavit of compliance shall so state. Service of process shall be
complete ten days after such papers are filed with the clerk of the
court. The refusal to accept delivery of the registered or certified
mail or to sign the return receipt shall not affect the validity of the
service and such limited liability company refusing to accept such
registered or certified mail shall be charged with knowledge of the
contents thereof.
(4) Service made as provided in this section without the state shall
have the same force as personal service made within this state.
(5) Nothing in this section shall affect the right to serve process in
any other manner permitted by law.
§ 301-b. Electronic service of process. The secretary of state shall
advise any limited liability company subject to the laws of this chapter
in prominent written form as follows: (a) electronic service of process
authorized by the provisions of this chapter is an optional program at
no additional cost to the user; (b) any limited liability company
subject to the laws of this chapter will continue to receive service of
process by mail unless such limited liability company notifies the
secretary of an affirmative choice to receive service of process by way
of the program through electronic means, in which case digital copies
will be made accessible but paper documents will not be mailed; and (c)
such choice may be reversed by the limited liability company at any time
and, thereafter, service by mail will resume.
§ 302. Registered agent for service of process. (a) In addition to the
designation of the secretary of state, each domestic limited liability
company or authorized foreign limited liability company may designate a
registered agent upon whom process against the limited liability company
may be served.
(b) The agent must be either:
(1) a natural person who is a resident of this state or has a business
address in this state;
(2) a domestic limited liability company or an authorized foreign
limited liability company; or
(3) a domestic corporation or a foreign corporation authorized to do
business in this state.
(d) The registered agent of a limited liability company may resign as
such agent. The registered agent shall file a certificate with the
department of state entitled "Certificate of resignation of registered
agent of... (name of limited liability company) under subdivision (d) of
section three hundred two of the Limited Liability Company Law" and
executed by such registered agent. Such certificate shall set forth:
(1) the name of the limited liability company, and if it has been
changed, the name under which it was formed. With respect to a foreign
limited liability company, there shall be set forth its name and, if
applicable, the fictitious name the foreign limited liability company
has agreed to use in this state pursuant to section eight hundred two of
this chapter;
(2) the date the articles of organization or application for authority
was filed by the department of state;
(3) that he or she resigns as registered agent of the limited
liability company; and
(4) that he or she has sent a copy of the certificate of resignation
by registered mail to the limited liability company at the post office
address on file with the department of state specified for the mailing
of process or, if such address is the address of the registered agent,
to the office of the limited liability company in the jurisdiction of
its formation.
(e) The designation of a registered agent shall terminate thirty days
after the filing with the department of state of the certificate of
resignation. A certificate designating a new registered agent may be
delivered to the department of state by the limited liability company
within the thirty days or thereafter.
§ 303. Service of process on limited liability companies. (a) Service
of process on the secretary of state as agent of a domestic limited
liability company or authorized foreign limited liability company shall
be made in the manner provided by paragraph one or two of this
subdivision. Either option of service authorized pursuant to this
subdivision shall be available at no extra cost to the consumer. (1)
Personally delivering to and leaving with the secretary of state or his
or her deputy, or with any person authorized by the secretary of state
to receive such service, at the office of the department of state in the
city of Albany, duplicate copies of such process together with the
statutory fee, which fee shall be a taxable disbursement. Service of
process on such limited liability company shall be complete when the
secretary of state is so served. The secretary of state shall promptly
send one of such copies by certified mail, return receipt requested, to
such limited liability company at the post office address on file in the
department of state specified for that purpose. (2) Electronically
submitting a copy of the process to the department of state together
with the statutory fee, which fee shall be a taxable disbursement,
through an electronic system operated by the department of state,
provided the domestic or authorized foreign limited liability company
has an email address on file in the department of state to which the
secretary of state shall email a notice of the fact that process has
been served electronically on the secretary of state. Service of process
on such limited liability company shall be complete when the secretary
of state has reviewed and accepted service of such process. The
secretary of state shall promptly send a notice of the fact that process
against such limited liability company has been served electronically on
him or her to such limited liability company at the email address on
file in the department of state, specified for the purpose and shall
make a copy of the process available to such limited liability company.
(b) Nothing in this section shall limit or affect the right to serve
any process required or permitted by law to be served upon a limited
liability company in any other manner now or hereafter permitted by law
or applicable rules of procedure.
§ 304. Service of process on unauthorized foreign limited liability
companies. (a) In any case in which a non-domiciliary would be subject
to the personal or other jurisdiction of the courts of this state under
article three of the civil practice law and rules, a foreign limited
liability company not authorized to do business in this state is subject
to a like jurisdiction. In any such case, process against such foreign
limited liability company may be served upon the secretary of state as
its agent. Such process may issue in any court in this state having
jurisdiction of the subject matter.
(b) Service of such process upon the secretary of state shall be made
in the manner provided by paragraph one or two of this subdivision.
Either option of service authorized pursuant to this subdivision shall
be available at no extra cost to the consumer.
(1) Personally delivering to and leaving with the secretary of state
or his or her deputy, or with any person authorized by the secretary of
state to receive such service, at the office of the department of state
in the city of Albany, a copy of such process together with the
statutory fee, which fee shall be a taxable disbursement.
(2) Electronically submitting a copy of the process to the department
of state together with the statutory fee, which fee shall be a taxable
disbursement, through an electronic system operated by the department of
state.
(c) Such service shall be sufficient if notice thereof and a copy of
the process are:
(1) delivered personally outside this state to such foreign limited
liability company by a person and in the manner authorized to serve
process by law of the jurisdiction in which service is made; or
(2) sent by or on behalf of the plaintiff to such foreign limited
liability company by registered mail, return receipt requested, at the
post office address specified for the purpose of mailing process, on
file in the department of state, or with any official or body performing
the equivalent function, in the jurisdiction of its formation, or if no
such address is specified, to its registered or other office specified,
or if no such office is specified, to the last address of such foreign
limited liability company known to the plaintiff.
(d) Where service of a copy of process was effected by personal
service, proof of service shall be by affidavit of compliance with this
section filed, together with the process, within thirty days after such
service, with the clerk of the court in which the action or special
proceeding is pending. Service of process shall be complete ten days
after such papers are filed with the clerk of the court.
(e) Where service of a copy of process was effected by mailing in
accordance with this section, proof of service shall be by affidavit of
compliance with this section filed, together with the process, within
thirty days after receipt of the return receipt signed by the foreign
limited liability company or other official proof of delivery or of the
original envelope mailed. If a copy of the process is mailed in
accordance with this section, there shall be filed with the affidavit of
compliance either the return receipt signed by such foreign limited
liability company or other official proof of delivery or, if acceptance
was refused by it, the original envelope with a notation by the postal
authorities that acceptance was refused. If acceptance was refused, a
copy of the notice and process together with notice of the mailing by
registered mail and refusal to accept shall be promptly sent to such
foreign limited liability company at the same address by ordinary mail
and the affidavit of compliance shall so state. Service of process shall
be complete ten days after such papers are filed with the clerk of the
court. The refusal to accept delivery of the registered mail or to sign
the return receipt shall not affect the validity of the service and such
foreign limited liability company refusing to accept such registered
mail shall be charged with knowledge of the contents thereof.
(f) Service made as provided in this section shall have the same force
as personal service made within this state.
(g) Nothing in this section shall limit or affect the right to serve
any process required or permitted by law to be served upon a foreign
limited liability company in any other manner now or hereafter permitted
by law or applicable rules of procedure.
§ 305. Records of process served on the secretary of state. The
secretary of state shall keep a record of each process served upon the
secretary of state under this chapter, including the date of such
service and the action of the secretary of state with reference thereto.
§ 401. Management of the limited liability company by members. (a)
Unless the articles of organization provides for management of the
limited liability company by a manager or managers or a class or classes
of managers, management of the limited liability company shall be vested
in its members who shall manage the limited liability company in
accordance with this chapter, subject to any provisions in the articles
of organization or the operating agreement and section four hundred
eighteen of this article granting or withholding the management powers
or responsibilities of one or more members or classes of members.
(b) If management of a limited liability company is vested in its
members, then (i) any such member exercising such management powers or
responsibilities shall be deemed to be a manager for purposes of
applying the provisions of this chapter, unless the context otherwise
requires, and (ii) any such member shall have and be subject to all of
the duties and liabilities of a manager provided in this chapter.
§ 402. Voting rights of members. (a) Except as provided in the
operating agreement, in managing the affairs of the limited liability
company, electing managers or voting on any other matter that requires
the vote at a meeting of the members pursuant to this chapter, the
articles of organization or the operating agreement, each member of a
limited liability company shall vote in proportion to such member's
share of the current profits of the limited liability company in
accordance with section five hundred three of this chapter.
(b) Except as provided in the operating agreement, any member may vote
in person or by proxy.
(c) Except as provided in the operating agreement, whether or not a
limited liability company is managed by the members or by one or more
managers, the vote of a majority in interest of the members entitled to
vote thereon shall be required to:
(1) admit a person as a member and issue such person a membership
interest in the limited liability company;
(2) approve the incurrence of indebtedness by the limited liability
company other than in the ordinary course of its business; or
(3) adopt, amend, restate or revoke the articles of organization or
operating agreement, subject to the provisions in subdivision (e) of
this section, subdivision (b) of section six hundred nine of this
chapter and subdivision (b) of section four hundred seventeen of this
article.
(d) Except as provided in the operating agreement, whether or not a
limited liability company is managed by the members or by one or more
managers, the vote of at least a majority in interest of the members
entitled to vote thereon shall be required to:
(1) approve the dissolution of the limited liability company in
accordance with section seven hundred one of this chapter;
(2) approve the sale, exchange, lease, mortgage, pledge or other
transfer of all or substantially all of the assets of the limited
liability company; or
(3) approve a merger or consolidation of the limited liability company
with or into another limited liability company or foreign limited
liability company.
(e) Notwithstanding anything to the contrary in this section or
section four hundred seventeen of this article, no applicable provision
in either this chapter, the articles of organization or operating
agreement, as the case may be, that provides for the vote or consent of
a percentage in interest of the members or class of members shall be
amended without the vote or consent of at least such percentage in
interest of the members or such class of members.
(f) Whenever any action is to be taken under this chapter by the
members or a class of members, it shall, except as otherwise required or
specified by this chapter or the articles of organization or the
operating agreement as permitted by this chapter, be authorized by a
majority in interest of the members' votes cast at a meeting of members
by members or such class of members entitled to vote thereon.
(g) A limited liability company whose original articles of
organization were filed with the secretary of state and effective prior
to the effective date of this subdivision shall continue to be governed
by this section as in effect on such date and shall not be governed by
this section, unless otherwise provided in the operating agreement.
§ 403. Meetings of members. Except as provided in the operating
agreement, a limited liability company shall hold meetings of members
annually. Meetings of members may be held at a place, either within or
outside this state, as may be fixed by or in accordance with the
operating agreement, or if not so fixed, at the office of the limited
liability company. Except as provided in the operating agreement,
members of a limited liability company may participate in a meeting by
means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other. Such participation shall constitute presence in person at the
meeting.
§ 404. Quorum of members. (a) Except as provided in the operating
agreement, a majority in interest of the members entitled to vote shall
constitute a quorum at a meeting of members for the transaction of any
business, provided that when a specified item of business is required to
be voted on by a class of members voting as a class, a majority in
interest of the members of such class shall constitute a quorum for the
transaction of such specified item of business.
(b) The operating agreement may provide for a greater quorum or a
lesser quorum, provided that such lesser quorum shall not be less than
one-third in interest of the members entitled to vote.
(c) When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any members.
(d) The members present may adjourn the meeting despite the absence of
a quorum.
§ 405. Notice of meetings of members. (a) Except as provided in the
operating agreement, whenever under the provisions of this chapter
members are required or permitted to take any action by vote at a
meeting, written notice shall be given stating the place, date and hour
of the meeting, indicating that it is being issued by or at the
direction of the person or persons calling the meeting and, in the case
of a special meeting, stating the purpose or purposes for which the
meeting is called.
(b) Except as provided in the operating agreement, a copy of the
notice of any meeting shall be given, personally or by first class mail,
not less than ten or more than sixty days before the date of the
meeting, provided, however, that a copy of such notice may be given by
third class mail not less than twenty-four nor more than sixty days
before the date of the meeting, to each member entitled to vote at such
meeting. If mailed, such notice is given when deposited in the United
States mail, with postage thereon prepaid, directed to the member at his
or her address as it appears in the records of the limited liability
company. An affidavit of a manager, if any, or other person giving the
notice that the notice required by this section has been given shall, in
the absence of fraud, be prima facie evidence of the facts therein
stated.
(c) Except as provided in the operating agreement, when a meeting is
adjourned to another time or place, it shall not be necessary to give
any notice of the adjourned meeting if the time and place to which the
meeting is adjourned are announced at the meeting at which the
adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the original date of the
meeting.
§ 406. Waiver of notice. Except as provided in the operating
agreement, notice of meeting need not be given to any member who submits
a signed waiver of notice, in person or by proxy, whether before or
after the meeting. The attendance of any member at a meeting, in person
or by proxy, without protesting prior to the conclusion of the meeting
the lack of notice of such meeting, shall constitute a waiver of notice
by him or her.
§ 407. Action by members without a meeting. (a) Whenever under this
chapter members of a limited liability company are required or permitted
to take any action by vote, except as provided in the operating
agreement, such action may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting
forth the action so taken shall be signed by the members who hold the
voting interests having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at
which all of the members entitled to vote therein were present and voted
and shall be delivered to the office of the limited liability company,
its principal place of business or a manager, employee or agent of the
limited liability company having custody of the records of the limited
liability company. Delivery made to the office of the limited liability
company shall be by hand or by certified or registered mail, return
receipt requested.
(b) Every written consent shall bear the date of signature of each
member who signs the consent, and, except as provided in the operating
agreement, no written consent shall be effective to take the action
referred to therein unless, within sixty days of the earliest dated
consent delivered in the manner required by this section to the limited
liability company, written consents signed by a sufficient number of
members to take the action are delivered to the office of the limited
liability company, its principal place of business or a manager,
employee or agent of the limited liability company having custody of the
records of the limited liability company. Delivery made to such office,
principal place of business or manager, employee or agent shall be by
hand or by certified or registered mail, return receipt requested.
(c) Prompt notice of the taking of the action without a meeting by
less than unanimous written consent shall be given to those members who
have not consented in writing but who would have been entitled to vote
thereon had such action been taken at a meeting. In the event that the
action that is consented to is such as would have required the filing of
articles or a certificate under any other section of this chapter, if
such action had been voted on by members at a meeting thereof, such
articles or certificate filed under such other section shall state, in
lieu of any statement required by such section concerning any vote of
members, that written consent has been given in accordance with this
section and that written notice has been given as provided in this
section.
§ 408. Management by managers. (a) If the articles of organization
provides that the management of the limited liability company shall be
vested in a manager or managers or class or classes of managers, then
the management of the limited liability company shall be vested in one
or more managers or classes of managers in accordance with this chapter,
subject to any provisions in the articles of organization or the
operating agreement and section four hundred nineteen of this article
granting or withholding the management powers or responsibilities of one
or more managers or class or classes of managers. A manager shall hold
such offices and have such responsibilities accorded to him or her by
the members as provided in the operating agreement.
(b) Except as provided in the operating agreement and in accordance
with section four hundred nineteen of this article, the managers shall
manage the limited liability company by the affirmative vote of a
majority of the managers.
(c) Except as provided in the operating agreement, any action required
or permitted to be taken by a vote of the managers or a class of
managers may be taken without a vote if all of the managers or all of
the managers in such class, as the case may be, consent thereto in
writing, and the writing is filed with the records of the limited
liability company.
(d) Except as otherwise provided in the operating agreement, managers
of a limited liability company may participate in a meeting by means of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other. Such
participation shall constitute presence in person at the meeting.
§ 409. Duties of managers. (a) A manager shall perform his or her
duties as a manager, including his or her duties as a member of any
class of managers, in good faith and with that degree of care that an
ordinarily prudent person in a like position would use under similar
circumstances.
(b) In performing his or her duties, a manager shall be entitled to
rely on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by:
(1) one or more agents or employees of the limited liability company;
(2) counsel, public accountants or other persons as to matters that
the manager believes to be within such person's professional or expert
competence; or
(3) a class of managers of which he or she is not a member, duly
designated in accordance with the operating agreement of the limited
liability company, as to matters within its designated authority, which
class the manager believes to merit confidence, so long as in so relying
he or she shall be acting in good faith and with such degree of care,
but he or she shall not be considered to be acting in good faith if he
or she has knowledge concerning the matter in question that would cause
such reliance to be unwarranted.
(c) A person who so performs his or her duties in accordance with this
section shall have no liability by reason of being or having been a
manager of the limited liability company.
§ 410. Qualification of managers. (a) Unless otherwise provided in the
operating agreement, a manager may, but need not, be a member of the
limited liability company.
(b) The operating agreement may prescribe qualifications for managers.
§ 411. Interested managers. (a) No contract or other transaction
between a limited liability company and one or more of its managers, or
between a limited liability company and any other limited liability
company or other business entity in which one or more of its managers
are managers, directors or officers, or have a substantial financial
interest, shall be either void or voidable for this reason alone or by
reason alone that such manager or managers are present at the meeting of
the managers, or of a class thereof, which approves such contract or
transaction, or that his or her or their votes are counted for such
purpose:
(1) if the material facts as to such manager's interest in such
contract or transaction and as to any such common managership,
directorship, officership or financial interest are disclosed in good
faith or known to the other managers or class of managers, and the
managers or such class approve such contract or transaction by a vote
sufficient for such purpose without counting the vote of such interested
manager or, if the votes of the disinterested managers are insufficient
to constitute an act of the managers pursuant to section four hundred
eight of this article, by unanimous vote of the disinterested managers;
or
(2) if the material facts as to such manager's interest in such
contract or transaction and as to any such common managership,
directorship, officership or financial interest are disclosed in good
faith or known to the members entitled to vote thereon, and such
contract or transaction is approved by vote of such members.
(b) If such good faith disclosure of the material facts as to the
manager's interest in the contract or transaction and as to any such
common managership, directorship, officership or financial interest is
made to the managers or members, or known to the managers or class of
managers or members approving such contract or transaction, as provided
in subdivision (a) of this section, the contract or transaction may not
be avoided by the limited liability company for the reasons set forth in
subdivision (a) of this section. If there was no such disclosure or
knowledge, or if the vote of such interested manager was necessary for
the approval of such contract or transaction at a meeting of the
managers or class of managers at which it was approved, the limited
liability company may avoid the contract or transaction unless the party
or parties thereto shall establish affirmatively that the contract or
transaction was fair and reasonable as to the limited liability company
at the time it was approved by the managers, a class of managers or the
members.
(c) Common or interested managers may be counted in determining the
presence of a quorum at a meeting of the managers or of a class of
managers that approves such contract or transaction.
(d) The operating agreement may contain additional restrictions on
contracts or transactions between a limited liability company and its
managers and may provide that contracts or transactions in violation of
such restrictions shall be void or voidable by the limited liability
company.
(e) Unless otherwise provided in the operating agreement, the managers
shall have authority to fix the compensation of managers for services in
any capacity.
§ 412. Agency of members or managers. (a) Unless the articles of
organization of a limited liability company provide that management
shall be vested in a manager or managers, every member is an agent of
the limited liability company for the purpose of its business, and the
act of every member, including the execution in the name of the limited
liability company of any instrument, for apparently carrying on in the
usual way the business of the limited liability company, binds the
limited liability company, unless (i) the member so acting has in fact
no authority to act for the limited liability company in the particular
matter and (ii) the person with whom he or she is dealing has knowledge
of the fact that the member has no such authority.
(b) If the articles of organization of a limited liability company
provide that management shall be vested in one or more managers:
(1) no member, solely by reason of being a member, is an agent of the
limited liability company for the purpose of its business except to the
extent that authority has been delegated to such member by the manager
or managers or by the provisions of the operating agreement; and
(2) every manager is an agent of the limited liability company for the
purpose of its business, and the act of every manager, including the
execution in the name of the limited liability company of any
instrument, for apparently carrying on in the usual way the business of
the limited liability company binds the limited liability company,
unless (A) the manager acting has in fact no authority to act for the
limited liability company in the particular matter and (B) the person
with whom he or she is dealing has knowledge of the fact that the
manager has no such authority.
(c) An act of a member or manager that is not apparently for the
carrying on of the business of the limited liability company in the
usual way does not bind the limited liability company unless authorized
in fact by the limited liability company in the particular matter.
(d) No act of a member, manager or other agent of a limited liability
company in contravention of a restriction on authority shall bind the
limited liability company to persons having knowledge of the
restriction.
§ 413. Election and term of managers. (a) Except as provided in the
operating agreement, if the articles of organization provides that
management shall be vested in one or more managers, the members shall
vote in accordance with section four hundred two of this article to
designate or elect annually the manager or managers of the limited
liability company.
(b) Each manager shall hold the office and have the terms (which may
be unlimited) and responsibilities accorded to him or her by the members
and set out in the operating agreement until his or her successor has
been elected and qualified or until his or her earlier resignation or
removal.
(c) Except as provided in the operating agreement, the initial
managers shall hold office until the first annual meeting of members and
until their successors have been elected and qualified.
(d) The number of managers may be increased or decreased by amendment
to and in the manner provided in the operating agreement.
§ 414. Removal or replacement of managers. Except as provided in the
operating agreement, any or all managers of a limited liability company
may be removed or replaced with or without cause by a vote of a majority
in interest of the members entitled to vote thereon.
§ 415. Resignation of managers. Except as provided in the operating
agreement, a manager may resign at any time by giving written notice to
the limited liability company; provided, however, that if the
resignation violates any provision contained in the operating agreement
or the provision of any contractual agreement between the manager and
the limited liability company, the limited liability company may recover
from such manager damages for such breach as provided by such operating
agreement or contract or by law. The election of a manager shall not of
itself create contract rights.
§ 416. Vacancies. (a) Except as provided in the operating agreement,
if management of the limited liability company is vested in a group of
managers, any vacancies occurring in such group may be filled by the
vote of a majority in interest of the members entitled to vote thereon.
(b) Except as provided in the operating agreement, a manager chosen to
fill a vacancy shall serve the unexpired term of his or her predecessor.
(c) Except as provided in the operating agreement, any manager's
position filled by reason of an increase in the number of managers shall
be filled by the vote of a majority in interest of the members entitled
to vote thereon.
(d) Except as provided in the operating agreement, a manager chosen to
fill a position resulting from an increase in the number of managers
shall hold office until the next annual meeting of members or until a
successor has been elected and qualified.
§ 417. Operating agreement. (a) Subject to the provisions of this
chapter, the members of a limited liability company shall adopt a
written operating agreement that contains any provisions not
inconsistent with law or its articles of organization relating to (i)
the business of the limited liability company, (ii) the conduct of its
affairs and (iii) the rights, powers, preferences, limitations or
responsibilities of its members, managers, employees or agents, as the
case may be.
The operating agreement may set forth a provision eliminating or
limiting the personal liability of managers to the limited liability
company or its members for damages for any breach of duty in such
capacity, provided that no such provision shall eliminate or limit:
(1) the liability of any manager if a judgment or other final
adjudication adverse to him or her establishes that his or her acts or
omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally
entitled or that with respect to a distribution the subject of
subdivision (a) of section five hundred eight of this chapter his or her
acts were not performed in accordance with section four hundred nine of
this article; or
(2) the liability of any manager for any act or omission prior to the
adoption of a provision authorized by this subdivision.
(b) The operating agreement of a limited liability company may be
amended from time to time as provided therein; provided, however, that,
except as otherwise provided in the operating agreement or the articles
of organization, without the written consent of each member adversely
affected thereby, (i) no amendment of the operating agreement or (ii) to
the extent any provision concerning (A) the obligations of any member to
make contributions, (B) the allocation for tax purposes of any items of
income, gain, loss, deduction or credit, (C) the manner of computing the
distributions of any member or (D) the compromise of an obligation of a
member to make a contribution is contained in the articles of
organization, no amendment of such provision in the articles of
organization, shall be made that (i) increases the obligations of any
member to make contributions, (ii) alters the allocation for tax
purposes of any items of income, gain, loss, deduction or credit, (iii)
alters the manner of computing the distributions of any member or (iv)
allows the obligation of a member to make a contribution to be
compromised by consent of less than all the members.
(c) An operating agreement may be entered into before, at the time of
or within ninety days after the filing of the articles of organization.
Regardless of whether such agreement was entered into before, at the
time of or after such filing, such agreement, may be effective upon the
formation of the limited liability company or at such later time or date
as provided in the operating agreement; provided, however, under no
circumstances shall an operating agreement become effective prior to the
formation of such company.
§ 418. Classes and voting of members. (a) The articles of organization
of a limited liability company may provide for classes or groups of
members having such relative rights, powers, preferences and limitations
as the operating agreement of such limited liability company may
provide. The articles of organization may make provision for the future
creation, in the manner provided in the operating agreement, of
additional classes of members having such relative rights, powers,
preferences and limitations as may from time to time be established
pursuant to the operating agreement, including rights, powers,
preferences, limitations and duties senior to existing classes of
members. The operating agreement may grant to or withhold from all or
one or more classes of members the right to vote upon any matter on the
basis of capital contributions, capital commitments or capital accounts
or on a per capita, class or other basis.
(b) The operating agreement may set forth provisions relating to
notice of the time, place or purpose of any meeting at which any matter
is to be voted on by any members, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
§ 419. Classes and voting of managers. (a) The articles of
organization of a limited liability company may provide for classes or
groups of managers having such relative rights, powers, preferences and
limitations as the operating agreement may provide. The articles of
organization may make provision for the future creation, in the manner
provided in the operating agreement, of additional classes of managers
having such relative rights, powers, preferences and limitations as may
from time to time be established pursuant to the operating agreement,
including rights, powers, preferences, limitations and duties senior to
existing classes of managers. The operating agreement may provide for
the classification of managers within classes of managers for the
purpose of determining the terms of office of such managers and may
grant to all or to one or more classes of managers the right to vote
upon any matter on a per capita, class or other basis.
(b) The operating agreement may set forth provisions relating to
notice of the time, place or purpose of any meeting at which any matter
is to be voted on by any managers, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
§ 420. Indemnification. Subject to the standards and restrictions, if
any, set forth in its operating agreement, a limited liability company
may, and shall have the power to, indemnify and hold harmless, and
advance expenses to, any member, manager or other person, or any
testator or intestate of such member, manager or other person, from and
against any and all claims and demands whatsoever; provided, however,
that no indemnification may be made to or on behalf of any member,
manager or other person if a judgment or other final adjudication
adverse to such member, manager or other person establishes (a) that his
or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so
adjudicated or (b) that he or she personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled.
§ 501. Form of capital contributions. The contribution of a member to
the capital of a limited liability company may be in cash, property or
services rendered or a promissory note or other obligation to contribute
cash or property or to render services, or any combination of the
foregoing.
§ 502. Liability for contributions. (a) Except as provided in the
operating agreement, a member is obligated to the limited liability
company to perform any promise to contribute cash or property or to
perform services that is otherwise enforceable in accordance with
applicable law, even if he or she is unable to perform because of death,
disability or any other reason. Except as provided in the operating
agreement, if a member does not make any required contribution of
property or services, he or she is obligated at the option of the
limited liability company to contribute cash equal to that portion of
the value, as stated in the records of the limited liability company, if
so stated, of the contribution that he or she has not made. The
foregoing option shall be in addition to, and not in lieu of, any other
rights, including the right to specific performance, that the limited
liability company may have against such member under the operating
agreement or applicable law.
(b) Unless otherwise provided in the operating agreement and except as
provided in section six hundred five of this chapter, the obligation of
a member to make a contribution or to return money or other property
paid or distributed in violation of this chapter may be compromised only
by consent of all the members. Notwithstanding the compromise, a
creditor of a limited liability company who extends credit in reliance
on the obligation of any member may enforce the original obligation to
the extent he or she reasonably relied on such obligation after the
member signed a writing which reflects the obligation and the creditor
extended credit before the compromise. A conditional obligation of a
member to make a contribution or return money or other property to a
limited liability company may not be enforced unless the conditions to
the obligation have been satisfied or waived as to or by such member.
Conditional obligations include contributions payable upon a
discretionary call of a limited liability company or a member prior to
the time the call occurs.
(c) The operating agreement may provide that the membership interest
of any member who fails to make any required contribution shall be
subject to specified consequences of such failure. Such consequences may
include, but are not limited to, reduction or elimination of the
defaulting member's interest, subordination of the defaulting member's
interest to that of nondefaulting members, a forced sale of the
defaulting member's interest, forfeiture of the defaulting member's
interest, the lending by the other members of the amount necessary to
meet the defaulting member's commitment, a fixing of the value of the
defaulting member's interest by appraisal or by formula and redemption
or sale of such member's interest at such value, or other consequences.
§ 503. Sharing of profits and losses. The profits and losses of a
limited liability company shall be allocated among the members, and
among the classes of members, if any, in the manner provided in the
operating agreement. If the operating agreement does not so provide,
profits and losses shall be allocated on the basis of the value, as
stated in the records of the limited liability company if so stated, of
the contributions of each member, but not including defaulted
obligations to make contributions, to the extent they have been received
by or promised to the limited liability company and have not been
returned to any such member.
§ 504. Sharing of distributions. Distributions of cash or other assets
of a limited liability company shall be allocated among the members, and
among classes of members, if any, in the manner provided in the
operating agreement, which may, among other things, establish record
dates for distributions. If the operating agreement does not so provide,
distributions shall be allocated on the basis of the value, as stated in
the records of the limited liability company, if so stated, of the
contributions of each member, but not including defaulted obligations to
make contributions, to the extent they have been received by or promised
to the limited liability company and have not been returned to any such
member.
§ 505. Distributions in kind. (a) Except as provided in the operating
agreement, a member, regardless of the nature of his or her
contribution, has no right to demand and receive any distribution from
the limited liability company in any form other than cash.
(b) Except as provided in the operating agreement, a member may not be
compelled to accept a distribution of any asset in kind from a limited
liability company to the extent that the percentage of the asset
distributed to him or her exceeds a percentage of that asset that is
equal to the percentage in which he or she shares in distributions from
the limited liability company.
§ 506. Right to distribution. Subject to sections five hundred eight
and seven hundred four of this chapter, at the time a member becomes
entitled to receive a distribution, such member has the status of, and
is entitled to all remedies available to, a creditor of the limited
liability company with respect to the distribution.
§ 507. Interim distributions. Except as provided in this chapter, to
the extent and at the times or upon the happening of events specified in
the operating agreement, a member is entitled to receive distributions
from a limited liability company before his or her withdrawal from the
limited liability company and before the dissolution and winding up of
the limited liability company.
§ 508. Limitations on distributions. (a) A limited liability company
shall not make a distribution to a member to the extent that, at the
time of the distribution, after giving effect to the distribution, all
liabilities of the limited liability company, other than liabilities to
members on account of their membership interests and liabilities for
which recourse of creditors is limited to specified property of the
limited liability company, exceed the fair market value of the assets of
the limited liability company, except that the fair market value of
property that is subject to a liability for which the recourse of
creditors is limited shall be included in the assets of the limited
liability company only to the extent that the fair value of such
property exceeds such liability.
(b) A member who receives a distribution in violation of subdivision
(a) of this section, and who knew at the time of distribution that the
distribution violated subdivision (a) of this section, shall be liable
to the limited liability company for the amount of the distribution. A
member who receives a distribution in violation of subdivision (a) of
this section, and who did not know at the time of the distribution that
the distribution violated subdivision (a) of this section, shall not be
liable for the amount of the distribution. Subject to subdivision (c) of
this section, this subdivision shall not affect any obligation or
liability of a member under the operating agreement or other applicable
law for the amount of a distribution.
(c) Unless otherwise agreed, a member who receives a wrongful
distribution from a limited liability company shall have no liability
under this article or other applicable law for the amount of the
distribution after the expiration of three years from the date of the
distribution.
§ 509. Distribution upon withdrawal. Except as provided in this
chapter, upon withdrawal as a member of the limited liability company,
any withdrawing member is entitled to receive any distribution to which
he or she is entitled under the operating agreement and, if not
otherwise provided in the operating agreement, he or she is entitled to
receive, within a reasonable time after withdrawal, the fair value of
his or her membership interest in the limited liability company as of
the date of withdrawal based upon his or her right to share in
distributions from the limited liability company.
§ 601. Nature of membership interest. A membership interest in the
limited liability company is personal property. A member has no interest
in specific property of the limited liability company.
§ 602. Admission of members. (a) A person becomes a member of a
limited liability company on the later of:
(1) the effective date of the initial articles of organization; or
(2) the date as of which the person becomes a member pursuant to this
section or the operating agreement; provided, however, that if such date
is not ascertainable, the date stated in the records of the limited
liability company.
(b) After the effective date of a limited liability company's initial
articles of organization, a person may be admitted as a member:
(1) in the case of a person acquiring a membership interest directly
from the limited liability company, upon compliance with the operating
agreement or, if the operating agreement does not so provide, upon the
vote or written consent of a majority in interest of the members;
(2) in the case of an assignee of a membership interest of a member
who has the power, as provided in the operating agreement, to grant the
assignee the right to become a member, upon the exercise of that power
and compliance with any conditions limiting the grant or exercise of the
power; or
(3) unless otherwise provided in an agreement of merger or
consolidation or the operating agreement, in the case of a person
acquiring a membership interest in a surviving or resulting limited
liability company pursuant to a merger or consolidation approved in
accordance with subdivision (b) of section one thousand one of this
chapter, at the time provided in and upon compliance with the operating
agreement of the surviving or resulting limited liability company.
§ 603. Assignment of membership interest. (a) Except as provided in
the operating agreement,
(1) a membership interest is assignable in whole or in part;
(2) an assignment of a membership interest does not dissolve a limited
liability company or entitle the assignee to participate in the
management and affairs of the limited liability company or to become or
to exercise any rights or powers of a member;
(3) the only effect of an assignment of a membership interest is to
entitle the assignee to receive, to the extent assigned, the
distributions and allocations of profits and losses to which the
assignor would be entitled; and
(4) a member ceases to be a member and to have the power to exercise
any rights or powers of a member upon assignment of all of his or her
membership interest. Unless otherwise provided in the operating
agreement, the pledge of, or the granting of a security interest, lien
or other encumbrance in or against, any or all of the membership
interest of a member shall not cause the member to cease to be a member
or to cease to have the power to exercise any rights or powers of a
member.
(b) The operating agreement may provide that a member's interest may
be evidenced by a certificate issued by the limited liability company
and may also provide for the assignment or transfer of any of the
interest represented by such a certificate. A member's interest may be a
certificated security or an uncertificated security within the meaning
of section 8--102 of the uniform commercial code if the requirements of
section 8--103(c) are met, and if the requirements are not met such
interest shall, for purposes of the uniform commercial code, be deemed
to be a general intangible asset. The existence of the restrictions on
the sale or transfer of a membership interest, as contained in this
chapter and, if applicable, in the operating agreement, shall be noted
conspicuously on the face or back of every certificate representing a
membership interest issued by a limited liability company. Any sale or
transfer in violation of such restrictions shall be void.
(c) Unless otherwise provided in an operating agreement and except to
the extent assumed by agreement, until the time, if any, that an
assignee of a membership interest becomes a member, the assignee shall
have no liability as a member solely as a result of the assignment.
§ 604. Rights of assignee to become a member. (a) Except as provided
in the operating agreement, an assignee of a membership interest may not
become a member without the vote or written consent of at least a
majority in interest of the members, other than the member who assigned
or proposes to assign such membership interest.
(b) An assignee who has become a member has, to the extent assigned,
the rights, powers, preferences and limitations and is subject to the
restrictions and liabilities, of a member under the articles of
organization, the operating agreement and this chapter. Notwithstanding
the foregoing, unless otherwise provided in the operating agreement, an
assignee who becomes a member is liable for the obligations of his or
her assignor to make contributions as provided in section five hundred
two of this chapter, but shall not be liable for the obligations of his
or her assignor under sections six hundred six and five hundred eight of
this chapter. However, the assignee is not obligated for (i)
liabilities, including the obligations of his or her assignor to make
contributions as provided in section five hundred two of this chapter,
unknown to the assignee at the time he or she becomes a member and that
could not be ascertained from the operating agreement or (ii) any
accrued liabilities of the assignor at the time of assignment unless the
assignee specifically assumes such liabilities.
§ 605. Liability upon assignment. Whether or not an assignee of a
membership interest becomes a member, the assignor of a membership
interest is not released from any liability under this chapter or the
operating agreement, except liabilities that arise after the
effectiveness of the assignment and are pursuant to section two hundred
ten of this chapter, section five hundred eight of this chapter or, in
the event the assignee becomes a member, unless otherwise provided in
the operating agreement, section five hundred two of this chapter.
§ 606. Withdrawal of a member. (a) A member may withdraw as a member
of a limited liability company only at the time or upon the happening of
events specified in the operating agreement and in accordance with the
operating agreement. Notwithstanding anything to the contrary under
applicable law, unless an operating agreement provides otherwise, a
member may not withdraw from a limited liability company prior to the
dissolution and winding up of the limited liability company.
Notwithstanding anything to the contrary under applicable law, an
operating agreement may provide that a membership interest may not be
assigned prior to the dissolution and winding up of the limited
liability company.
(b) A limited liability company whose original article of organization
were filed with the secretary of state and effective prior to the
effective date of this subdivision shall continue to be governed by this
section as in effect on such date and shall not be governed by this
section, unless otherwise provided in the operating agreement.
§ 607. Rights of creditors of members. (a) On application to a court
of competent jurisdiction by any judgment creditor of a member, the
court may charge the membership interest of the member with payment of
the unsatisfied amount of the judgment with interest. To the extent so
charged, the judgment creditor has only the rights of an assignee of the
membership interest. This chapter does not deprive any member of the
benefit of any exemption laws applicable to his or her membership
interest.
(b) No creditor of a member shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to,
the property of the limited liability company.
§ 608. Powers of estate of a deceased or incompetent member. If a
member who is a natural person dies or a court of competent jurisdiction
adjudges him or her to be incompetent to manage his or her person or his
or her property, the member's executor, administrator, guardian,
conservator or other legal representative may exercise all of the
member's rights for the purpose of settling his or her estate or
administering his or her property, including any power under the
operating agreement of an assignee to become a member. If a member is a
corporation, trust or other entity and is dissolved or terminated, the
powers of that member may be exercised by its legal representative or
successor.
§ 609. Liability of members, managers and agents. (a) Neither a member
of a limited liability company, a manager of a limited liability company
managed by a manager or managers nor an agent of a limited liability
company (including a person having more than one such capacity) is
liable for any debts, obligations or liabilities of the limited
liability company or each other, whether arising in tort, contract or
otherwise, solely by reason of being such member, manager or agent or
acting (or omitting to act) in such capacities or participating (as an
employee, consultant, contractor or otherwise) in the conduct of the
business of the limited liability company.
(b) Notwithstanding the provisions of subdivision (a) of this section,
all or specified members of a limited liability company may be liable in
their capacity as members for all or specified debts, obligations or
liabilities of a limited liability company if (l) a statement to such
effect is specifically contained in the articles of organization of the
limited liability company and (2) any such member so liable shall have
(i) specifically consented in writing (A) to the adoption of such
provisions or (B) to be bound by such provision or (ii) specifically
voted for the adoption of such provision. The absence of either such
statement in the articles of organization or such consent or vote of any
such member shall in no way affect or impair the ability of a member to
act as a guarantor or a surety for, provide collateral for or otherwise
be liable for, the debts, obligations or liabilities of a limited
liability company as authorized pursuant to section six hundred eleven
of this article.
(c) Notwithstanding the provisions of subdivisions (a) and (b) of this
section, the ten members with the largest percentage ownership interest,
as determined as of the beginning of the period during which the unpaid
services referred to in this section are performed, of every domestic
limited liability company, or of any foreign limited liability company,
when the unpaid services were performed in the state, shall jointly and
severally be personally liable for all debts, wages or salaries due and
owing to any of its laborers, servants or employees, for services
performed by them for such limited liability company. Before such
laborer, servant or employee shall charge such member for such services,
he or she shall give notice in writing to such member that he or she
intends to hold such member liable under this section. Such notice shall
be given within one hundred eighty days after termination of such
services. An action to enforce such liability shall be commenced within
ninety days after the return of an execution unsatisfied against the
limited liability company upon a judgment recovered against it for such
services. A member who has paid more than his or her pro rata share
under this section shall be entitled to contribution pro rata from the
other members liable under this section with respect to the excess so
paid, over and above his or her pro rata share, and may sue them jointly
or severally or any number of them to recover the amount due from them.
Such recovery may be had in a separate action. As used in this
subdivision, "pro rata" means in proportion to percentage ownership
interest. Before a member may claim contribution from other members
under this section, he or she shall give them notice in writing that he
or she intends to hold them so liable to him or her.
(d) For the purposes of this section, wages or salaries shall mean all
compensation and benefits payable by an employer to or for the account
of the employee, servant or laborer, for services performed by them for
such limited liability company. These shall specifically include but not
be limited to salaries, overtime, vacation, holiday and severance pay;
employer contributions to or payments of insurance or welfare benefits;
employer contributions to pension or annuity funds; and any other moneys
properly due or payable for services rendered by such employee, servant
or laborer, including any concomitant liquidated damages, penalties,
interest, attorneys' fees or costs.
§ 610. Parties to actions. A member of a limited liability company is
not a proper party to proceedings by or against a limited liability
company, except where the object is to enforce a member's right against
or liability to the limited liability company.
§ 611. Business transactions of a member with the limited liability
company. Except as may be provided in the operating agreement, a member
may lend money to, borrow money from, act as a guarantor or surety for,
provide collateral for the obligations of and transact other business
with the limited liability company and, subject to other applicable law,
has the same rights and obligations with respect thereto as a person who
is not a member.
§ 701. Dissolution. (a) A limited liability company is dissolved and
its affairs shall be wound up upon the first to occur of the following:
(1) the latest date on which the limited liability company is to
dissolve, if any, provided in the articles of organization, or the time
specified in the operating agreement, but if no such date is provided in
the articles of organization and if no such time is specified in the
operating agreement, then the limited liability company shall have a
perpetual existence;
(2) the happening of events specified in the operating agreement;
(3) subject to any requirement in the operating agreement requiring
approval by any greater or lesser percentage in interest of the members
or class or classes or group or groups of members, the vote or written
consent of at least a majority in interest of the members or, if there
is more than one class or group of members, then by at least a majority
in interest of each class or group of members;
(4) at any time there are no members, provided that, unless otherwise
provided in the operating agreement, the limited liability company is
not dissolved and is not required to be wound up if, within one hundred
eighty days or such other period as is provided for in the operating
agreement after the occurrence of the event that terminated the
continued membership of the last remaining member, the legal
representative of the last remaining member agrees in writing to
continue the limited liability company and to the admission of the legal
representative of such member or its assignee to the limited liability
company as a member, effective as of the occurrence of the event that
terminated the continued membership of the last remaining member; or
(5) the entry of a decree of judicial dissolution under section seven
hundred two of this article.
(b) Unless otherwise provided in the operating agreement, the death,
retirement, resignation, expulsion, bankruptcy or dissolution of any
member or the occurrence of any other event that terminates the
continued membership of any member shall not cause the limited liability
company to be dissolved or its affairs to be wound up, and upon the
occurrence of any such event, the limited liability company shall be
continued without dissolution, unless within one hundred eighty days
following the occurrence of such event, a majority in interest of all of
the remaining members of the limited liability company or, if there is
more than one class or group of members, then by a majority in interest
of all the remaining members of each class or group of members, vote or
agree in writing to dissolve the limited liability company.
(c) A limited liability company whose original articles of
organization were filed with the secretary of state and effective prior
to the effective date of this subdivision shall continue to be governed
by this section as in effect on such date and shall not be governed by
this section, unless otherwise provided in the operating agreement.
§ 702. Judicial dissolution. On application by or for a member, the
supreme court in the judicial district in which the office of the
limited liability company is located may decree dissolution of a limited
liability company whenever it is not reasonably practicable to carry on
the business in conformity with the articles of organization or
operating agreement. A certified copy of the order of dissolution shall
be filed by the applicant with the department of state within thirty
days of its issuance.
§ 703. Winding up. (a) In the event of a dissolution of a limited
liability company, except for a dissolution pursuant to section seven
hundred two of this article, unless otherwise provided in the operating
agreement, the members may wind up the limited liability company's
affairs. Upon cause shown, the supreme court in the judicial district in
which the office of the limited liability company is located may wind up
the limited liability company's affairs upon application of any member,
or his or her legal representative or assignee, and in connection
therewith may appoint a receiver or liquidating trustee.
(b) Upon dissolution of a limited liability company, the persons
winding up the limited liability company's affairs may, in the name of
and for and on behalf of the limited liability company, prosecute and
defend suits, whether civil, criminal or administrative, settle and
close the limited liability company's business, dispose of and convey
the limited liability company's property, discharge the limited
liability company's liabilities and distribute to the members any
remaining assets of the limited liability company, all without affecting
the liability of members including members participating in the winding
up of the limited liability company's affairs.
§ 704. Distribution of assets. Upon the winding up of a limited
liability company, the assets shall be distributed as follows:
(a) to creditors, including members who are creditors, to the extent
permitted by law, in satisfaction of liabilities of the limited
liability company, whether by payment or by establishment of adequate
reserves, other than liabilities for distributions to members and former
members under section five hundred seven or section five hundred nine of
this chapter;
(b) except as provided in the operating agreement, to members and
former members in satisfaction of liabilities for distributions under
section five hundred seven or section five hundred nine of this chapter;
and
(c) except as provided in the operating agreement, to members first
for the return of their contributions, to the extent not previously
returned, and second respecting their membership interests, in the
proportions in which the members share in distributions in accordance
with section five hundred four of this chapter.
§ 705. Articles of dissolution. (a) Within ninety days following the
dissolution and the commencement of winding up of the limited liability
company, or at any other time after the expiration of the time period
for continuation of the limited liability company without the agreement
in writing to continue by the legal representative of the last remaining
member under paragraph four of subdivision (a) of section seven hundred
one of this article has expired, articles of dissolution shall be filed
with the department of state entitled "Articles of dissolution of...
(name of limited liability company) under section seven hundred five of
the Limited Liability Company Law" and executed in accordance with
section two hundred seven of this chapter. The articles of dissolution
shall set forth:
(1) the name of the limited liability company; and if it has been
changed, the name under which it was formed;
(2) the date of filing of its articles of organization;
(3) the event giving rise to the filing of the articles of
dissolution; and
(4) any other information the persons filing the articles determine.
(b) The cancellation of the articles of organization is effective at
the time of filing of the articles of dissolution.
(c) The cancellation of the articles of organization shall not affect
the liability of the members during the period of winding up and
termination of the limited liability company.
§ 801. Governing law. Subject to the constitution of this state:
(a) the laws of the jurisdiction under which a foreign limited
liability company is formed govern its organization and internal affairs
and the liability of its members and managers; and
(b) a foreign limited liability company may not be denied a
certificate of authority by reason of any difference between such laws
and the laws of this state.
§ 802. Application for authority. (a) Before doing business in this
state, a foreign limited liability company shall apply for authority to
do business in this state by submitting to the department of state (i) a
certificate of existence or, if no such certificate is issued by the
jurisdiction of formation, a certified copy of the articles of
organization of the limited liability company and all subsequent
amendments thereto or, if no articles of organization have been filed, a
certified copy of the certificate filed as its organizational basis and
all amendments thereto (if such certificate or certified copy is in a
foreign language, a translation in English thereof under oath of the
translator shall be attached thereto) and (ii) an application for
authority as a foreign limited liability company entitled "Application
for authority of... (name of foreign limited liability company) under
section eight hundred two of the Limited Liability Company Law," signed
and setting forth:
(1) the name of the foreign limited liability company and, if a
foreign liability company's name is not acceptable for authorization
pursuant to section two hundred four of this chapter, the fictitious
name under which it proposes to apply for authority and do business in
this state, which name shall be in compliance with section two hundred
four of this chapter and shall be used by the foreign limited liability
company in all its dealings with the department of state and in the
conduct of its business in this state. The provisions of section one
hundred thirty of the general business law shall not apply to any
fictitious name filed by a foreign limited liability company pursuant to
this section, and a filing under section one hundred thirty of the
general business law shall not constitute the adoption of a fictitious
name;
(2) the jurisdiction and date of its organization;
(3) the county within this state in which the office of the foreign
limited liability company is to be located or if the foreign limited
liability company shall maintain more than one office in this state, the
county within the state in which the principal office of the foreign
limited liability company is to be located;
(4) a designation of the secretary of state as its agent upon whom
process against it may be served and the post office address within or
without this state to which the secretary of state shall mail a copy of
any process against it served upon him or her. The limited liability
company may include an email address to which the secretary of state
shall email a notice of the fact that process against it has been
electronically served upon him or her;
(5) if it is to have a registered agent, his or her name and address
within the state and a statement that the registered agent is to be its
agent upon whom process may be served;
(6) the address of the office required to be maintained in the
jurisdiction of its formation by the laws of that jurisdiction or, if
not so required, of the principal office of the foreign limited
liability company;
(7) a statement that the foreign limited liability company is in
existence in the jurisdiction of its formation at the time of the filing
of such application; and
(8) the name and address of the authorized officer in the jurisdiction
of its formation where a copy of its articles of organization is filed
or, if no public filing of its articles of organization is required by
the law of the jurisdiction of formation, a statement that the foreign
limited liability company shall provide, on request, a copy thereof with
all amendments thereto (if such documents are in a foreign language, a
translation in English thereof under oath of the translator shall be
attached thereto), and the name and post office address of the person
responsible for providing such copies.
(b) (i) Within one hundred twenty days after the filing of the
application for authority with the department of state, a copy of the
same or a notice containing the substance thereof shall be published
once in each week for six successive weeks, in two newspapers of the
county within this state in which the office of the foreign limited
liability company is located, one newspaper to be printed weekly and one
newspaper to be printed daily, to be designated by the county clerk.
When such county is located within a city with a population of one
million or more, such designation shall be as though the copy or notice
were a notice or advertisement of judicial proceedings. Proof of the
publication required by this paragraph, consisting of the certificate of
publication of the foreign limited liability company with the affidavits
of publication of such newspapers annexed thereto, must be filed with
the department of state. Notwithstanding any other provision of law, if
the office of the foreign limited liability company is located in a
county wherein a weekly or daily newspaper of the county, or both, has
not been so designated by the county clerk, then the publication herein
required shall be made in a weekly or daily newspaper of any county, or
both, as the case may be, which is contiguous to, such county, provided
that any such newspaper meets all the other requirements of this
paragraph. A copy or notice published in a newspaper other than the
newspaper or newspapers designated by the county clerk shall not be
deemed to be one of the publications required by this subdivision. The
notice shall include: (l) the name of the foreign limited liability
company; (2) the date of filing of the application for authority with
the department of state; (3) the jurisdiction and date of its
organization; (4) the county within this state, in which the office of
the foreign limited liability company is located; (4-a) the street
address of the principal business location, if any; (5) a statement that
the secretary of state has been designated as agent of the foreign
limited liability company upon whom process against it may be served and
the post office address within or without this state to which the
secretary of state shall mail a copy of any process against it served
upon him or her; (6) if the foreign limited liability company is to have
a registered agent, his or her name and address within this state and a
statement that the registered agent is to be the agent of the foreign
limited liability company upon whom process against it may be served;
(7) the address of the office required to be maintained in the
jurisdiction of its organization by the laws of that jurisdiction or, if
not so required, of the principal office of the foreign limited
liability company; (8) the name and address of the authorized officer in
its jurisdiction of organization where a copy of its certificate of
organization is filed or, if no public filing of its certificate of
organization is required by the law of its jurisdiction of organization,
a statement that the foreign limited liability company shall provide, on
request, a copy thereof with all amendments thereto (if such documents
are in a foreign language, a translation thereof under oath of the
translator shall be attached thereto), and the name and post office
address of the person responsible for providing such copies; and (9) the
character or purpose of the business of such foreign limited liability
company. Where, at any time after completion of the first of the six
weekly publications required by this paragraph and prior to the
completion of the sixth such weekly publication, there is a change in
any of the information contained in the copy or notice as published, the
foreign limited liability company may complete the remaining
publications of the original copy or notice, and the foreign limited
liability company shall not be required to publish any further or
amended copy or notice. Where, at any time after completion of the six
weekly publications required by this paragraph, there is a change to any
of the information contained in the copy or notice as published, no
further or amended publication or republication shall be required to be
made. If within one hundred twenty days after the filing of its
application for authority with the department of state, proof of such
publication, consisting of the certificate of publication of the foreign
limited liability company with the affidavits of publication of the
newspapers annexed thereto has not been filed with the department of
state, the authority of such foreign limited liability company to carry
on, conduct or transact any business in this state shall be suspended,
effective as of the expiration of such one hundred twenty day period.
The failure of a foreign limited liability company to cause such copy or
notice to be published and such certificate of publication and
affidavits of publication to be filed with the department of state
within such one hundred twenty day period or the suspension of such
foreign limited liability company's authority to carry on, conduct or
transact business in this state pursuant to this paragraph shall not
limit or impair the validity of any contract or act of such foreign
limited liability company, or any right or remedy of any other party
under or by virtue of any contract, act or omission of such foreign
limited liability company, or the right of any other party to maintain
any action or special proceeding on any such contract, act or omission,
or right of such foreign limited liability company to defend any action
or special proceeding in this state, or result in any member, manager or
agent of such foreign limited liability company becoming liable for the
contractual obligations or other liabilities of the foreign limited
liability company. If, at any time following the suspension of a foreign
limited liability company's authority to carry on, conduct or transact
business in this state pursuant to this paragraph, such foreign limited
liability company shall cause proof of publication in substantial
compliance with the provisions (other than the one hundred twenty day
period) of this paragraph, consisting of the certificate of publication
of the foreign limited liability company with the affidavits of
publication of the newspapers annexed thereto, to be filed with the
department of state, such suspension of such foreign limited liability
company's authority to carry on, conduct or transact business shall be
annulled.
(ii)(1) A foreign limited liability company which was formed and filed
its application for authority with the department of state prior to the
effective date of this paragraph and complied with the publication and
filing requirements of this subdivision as in effect prior to such
effective date shall not be required to make any publication or
republication or any filing under paragraph (i) of this subdivision, and
shall not be subject to suspension pursuant to this subdivision.
(2) Within twelve months after the effective date of this paragraph, a
foreign limited liability company which was formed and filed its
application for authority with the department of state prior to such
effective date and which did not comply with the publication and filing
requirements of this subdivision as in effect prior to such effective
date shall publish a copy of its application for authority or a notice
containing the substance thereof in the manner required (other than the
one hundred twenty day period) by this subdivision as in effect prior to
such effective date and file proof of such publication, consisting of
the certificate of publication of the foreign limited liability company
with the affidavits of publication of the newspapers annexed thereto,
with the department of state.
(3) If a foreign limited liability company that is subject to the
provisions of subparagraph two of this paragraph fails to file the
required proof of publication with the department of state within twelve
months after the effective date of this paragraph, its authority to
carry on, conduct or transact any business in this state shall be
suspended, effective as of the expiration of such twelve month period.
(4) The failure of a foreign limited liability company that is subject
to the provisions of subparagraph two of this paragraph to fully comply
with the provisions of said subparagraph two or the suspension of such
foreign limited liability company's authority to carry on, conduct or
transact any business in this state pursuant to subparagraph three of
this paragraph shall not impair or limit the validity of any contract or
act of such foreign limited liability company, or any right or remedy of
any other party under or by virtue of any contract, act or omission of
such foreign limited liability company, or the right of any other party
to maintain any action or special proceeding on any such contract, act
or omission, or right of such foreign limited liability company to
defend any action or special proceeding in this state, or result in any
member, manager or agent of such foreign limited liability company
becoming liable for the contractual obligations or other liabilities of
the foreign limited liability company.
(5) If, at any time following the suspension of a foreign limited
liability company's authority to carry on, conduct or transact business
in this state, pursuant to subparagraph three of this paragraph, such
foreign limited liability company shall cause proof of publication in
substantial compliance with the provisions (other than the one hundred
twenty day period) of paragraph (i) of this subdivision, consisting of
the certificate of publication of the foreign limited liability company
with the affidavits of publication of the newspapers annexed thereto, to
be filed with the department of state, such suspension of such foreign
limited liability company's authority to carry on, conduct or transact
business shall be annulled.
(6) For the purposes of this paragraph, a foreign limited liability
company which was formed and filed its application for authority with
the department of state prior to the effective date of this paragraph
shall be deemed to have complied with the publication and filing
requirements of this subdivision as in effect prior to such effective
date if (i) the foreign limited liability company was formed and filed
its application for authority with the department of state on or after
January first, nineteen hundred ninety-nine and prior to such effective
date and the foreign limited liability company filed at least one
affidavit of the printer or publisher of a newspaper with the department
of state at any time prior to such effective date, or (ii) the foreign
limited liability company was formed and filed its application for
authority with the department of state prior to January first, nineteen
hundred ninety-nine, without regard to whether the foreign limited
liability company did or did not file any affidavit of the printer or
publisher of a newspaper with the secretary of state.
(iii) The information in a notice published pursuant to this
subdivision shall be presumed to be in compliance with and satisfaction
of the requirements of this subdivision.
§ 803. Activities not constituting doing business. (a) Without
excluding other activities that may not constitute doing business in
this state, a foreign limited liability company shall not be considered
to be doing business in this state for the purposes of this chapter, by
reason of carrying on in this state any one or more of the following
activities:
(1) maintaining or defending any action or proceeding, whether
judicial, administrative, arbitrative or otherwise or effecting
settlement thereof or the settlement of claims or disputes;
(2) holding meetings of its members or managers;
(3) maintaining bank accounts; or
(4) maintaining offices or agencies only for the transfer, exchange
and registration of its membership interests or appointing and
maintaining depositaries with relation to its membership interests.
(b) The specification in subdivision (a) of this section does not
establish a standard of activities that may subject a foreign limited
liability company to service of process under this chapter or any other
statute of this state.
§ 804. Amendments to application for authority. (a) A foreign limited
liability company may amend its application for authority from time to
time if the amendments contain only such provisions as might be lawfully
contained in an application for authority at the time of making such
amendment. To accomplish such amendment, a certificate, entitled
"Certificate of amendment of ... (name of foreign limited liability
company) under section eight hundred four of the Limited Liability
Company Law," shall be signed by an authorized person and delivered to
the department of state. The certificate shall set forth:
(1) the name of the foreign limited liability company as it appears on
the index of names of existing domestic and authorized foreign limited
liability companies of any type or kind in the department of state, and
the fictitious name, if any, the foreign limited liability company has
agreed to use in this state pursuant to section eight hundred two of
this article;
(2) the jurisdiction of its organization;
(3) the date it was authorized to do business in this state;
(4) each amendment effected thereby; and
(5) if the true name of the foreign limited liability company is to be
changed, a statement that the change of name has been effected under the
laws of the jurisdiction of its formation and the date the change was so
effected.
(b) Every foreign limited liability company that has received a filing
receipt entitled "Certificate of authority of... (name of foreign
limited liability company) under section eight hundred five of the
Limited Liability Company Law," evidencing authority as provided herein,
shall, within ninety days after it has changed its name in the
jurisdiction of its formation, file an amendment to its application with
the department of state under subdivision (a) of this section.
§ 804-A. Certificate of change. (a) A foreign limited liability
company may amend its application for authority from time to time to (i)
specify or change the location of the limited liability company's
office; (ii) specify or change the post office address to which the
secretary of state shall mail a copy of any process against the limited
liability company served upon him or her; (iii) specify, change or
delete the email address to which the secretary of state shall email a
notice of the fact that process against the limited liability company
has been electronically served upon him or her; and (iv) to make, revoke
or change the designation of a registered agent, or to specify or change
the address of a registered agent. Any one or more such changes may be
accomplished by filing a certificate of change which shall be entitled
"Certificate of Change of ........ (name of limited liability company)
under section 804-A of the Limited Liability Company Law" and shall be
signed and delivered to the department of state. It shall set forth:
(1) the name of the foreign limited liability company and, if
applicable, the fictitious name the limited liability company has agreed
to use in this state pursuant to section eight hundred two of this
article;
(2) the date its application for authority was filed by the department
of state; and
(3) each change effected thereby,
(b) A certificate of change which changes only the post office address
to which the secretary of state shall mail a copy of any process against
a foreign limited liability company served upon him or her, and/or the
email address to which the secretary of state shall email a notice of
the fact that process against it has been electronically served upon the
secretary of state, and/or the address of the registered agent, provided
such address being changed is the address of a person, partnership or
corporation whose address, as agent, is the address to be changed,
and/or the email address being changed is the email address of a person,
partnership or other corporation whose email address, as agent, is the
email address to be changed, or who has been designated as registered
agent for such limited liability company may be signed and delivered to
the department of state by such agent. The certificate of change shall
set forth the statements required under subdivision (a) of this section;
that a notice of the proposed change was mailed to the foreign limited
liability company by the party signing the certificate not less than
thirty days prior to the date of delivery to the department of state and
that such foreign limited liability company has not objected thereto;
and that the party signing the certificate is the agent of such foreign
limited liability company to whose address the secretary of state is
required to mail copies of process, and/or the agent of such foreign
limited liability company to whose email address the secretary of state
is required to email a notice of the fact that process against it has
been electronically served upon the secretary of state, or the
registered agent, if such be the case. A certificate signed and
delivered under this subdivision shall not be deemed to effect a change
of location of the office of the foreign limited liability company in
whose behalf such certificate is filed.
§ 805. Issuance of certificate of authority; effect. (a) Upon filing
with the department of state of the application for authority, the
department of state shall issue a filing receipt entitled "Certificate
of authority of... (name of foreign limited liability company) under
section eight hundred five of the Limited Liability Company Law," and
the foreign limited liability company shall be authorized to do business
in this state. Such authority shall continue so long as the foreign
limited liability company retains its authority to do business in the
jurisdiction of its formation and its authority to do business has not
been surrendered, suspended or annulled in accordance with the law.
(b) A foreign limited liability company that has received a
certificate of authority shall have such powers to conduct business in
this state as are permitted by the laws of the jurisdiction in which it
was organized but no greater than those of a domestic limited liability
company; provided, that this subdivision shall not affect the powers of
the foreign limited liability company outside this state; and provided,
further, that a foreign related limited liability partnership (i) shall
have such powers to conduct business in this state as are permitted by
the laws of the jurisdiction whose laws govern the agreement under which
such foreign related limited liability partnership operates but no
greater than those of a partnership without limited partners operating
under an agreement governed by the laws of this state and provided that
such foreign related limited liability partnership shall not engage in
any profession or professions and (ii) shall be deemed to be a foreign
limited liability partnership for purposes of subdivisions (l) and (m)
of section 121-1502 of the partnership law which subdivisions shall be
applicable to foreign related limited liability partnerships.
§ 806. Surrender of certificate of authority. (a) A foreign limited
liability company may surrender its certificate of authority by filing
with the department of state a certificate entitled "Certificate of
surrender of authority of... (name of foreign limited liability company)
under section eight hundred six of the Limited Liability Company Law"
signed by an authorized person, or by a trustee, receiver or other
person authorized by law to wind up such limited liability company. The
authority of the foreign limited liability company to do business in
this state shall terminate on such filing of the certificate of
surrender of authority. A surrender shall not terminate the authority of
the secretary of state to accept service of process on the foreign
limited liability company with respect to causes of action arising out
of doing business in this state.
(b) The certificate of surrender of authority shall set forth:
(1) the name of the foreign limited liability company as it appears on
the index of names of existing domestic and authorized foreign limited
liability companies of any type or kind in the department of state, and
the fictitious name the foreign limited liability company has agreed to
use in this state pursuant to section eight hundred two of this article;
(2) the jurisdiction where it was organized;
(3) the date on which its certificate of authority to do business in
this state was filed with the department of state;
(4) that it surrenders its authority to do business in this state;
(5) that it revokes the authority of its registered agent, if any,
previously designated, and that it consents that process against it in
any action or special proceeding based upon any liability or obligation
incurred by it within this state before the filing of the certificate of
surrender may be served on the secretary of state in the manner set
forth in article three of this chapter; and
(6) a post office address within or without this state to which the
secretary of state shall mail a copy of any process against it served
upon him or her. The limited liability company may include an email
address to which the secretary of state shall email a notice of the fact
that process against it has been electronically served upon him or her.
§ 807. Termination of existence. When a foreign limited liability
company that has received a certificate of authority is dissolved or its
authority to conduct its business or existence is otherwise terminated
or canceled in the jurisdiction of its formation or when such foreign
limited liability company is merged into or consolidated with another
foreign limited liability company, (a) a certificate of the secretary of
state or official performing the equivalent function as to limited
liability company records in the jurisdiction of organization of such
limited liability company attesting to the occurrence of any such event
or (b) a certified copy of an order or decree of a court of such
jurisdiction directing the dissolution of such foreign limited liability
company, the termination of its existence or the surrender of its
authority shall be delivered to the department of state. The filing of
the certificate, order or decree shall have the same effect as the
filing of a certificate of surrender of authority under section eight
hundred six of this article. The secretary of state shall continue as
agent of the foreign limited liability company upon whom process against
it may be served in the manner set forth in article three of this
chapter, in any action or proceeding based upon any liability or
obligation incurred by the foreign limited liability company within this
state prior to the filing of such certificate, order or decree. The post
office address and/or email address may be changed by filing with the
department of state a certificate of amendment under section eight
hundred four of this article.
§ 808. Doing business without certificate of authority. (a) A foreign
limited liability company doing business in this state without having
received a certificate of authority to do business in this state may not
maintain any action, suit or special proceeding in any court of this
state unless and until such limited liability company shall have
received a certificate of authority in this state.
(b) The failure of a foreign limited liability company that is doing
business in this state to comply with the provisions of this chapter
does not impair the validity of any contract or act of the foreign
limited liability company or prevent the foreign limited liability
company from defending any action or special proceeding in any court of
this state.
(c) A member, manager or agent of a foreign limited liability company
is not liable for the contractual obligations or other liabilities of
the foreign limited liability company solely by reason of the limited
liability company's doing or having done business in this state without
having received a certificate of authority.
(d) By doing business in this state without authority, a foreign
limited liability company appoints the secretary of state as its agent
for service of process with respect to causes of action arising out of
doing business in this state. In any such case, process against such
foreign limited liability company may be served upon the secretary of
state in the manner set forth in article three of this chapter.
§ 809. Action by attorney general. The attorney general shall, upon
his or her own motion or upon the motion of proper parties, bring an
action to restrain a foreign limited liability company without a
certificate of authority from doing any business in this state in
violation of this chapter or from doing any business in this state that
is prohibited under the laws of this state. The attorney general may
bring an action or special proceeding to annul the authority of a
foreign limited liability company that is doing any business in this
state that is prohibited under the laws of this state. The attorney
general shall deliver a certified copy of the order of annulment to the
department of state. Upon the filing thereof by the department of state,
the certificate of authority of the foreign limited liability company to
do business in this state shall be annulled, and the provisions of
section eight hundred seven of this article shall thereafter be
applicable. The secretary of state shall continue as agent of the
foreign limited liability company upon whom process against it may be
served in any action, suit or special proceeding based upon any
liability or obligation incurred by the foregoing foreign limited
liability company within the state prior to the filing of the certified
copy of the order of annulment by the department of state.
§ 1001. Merger or consolidation. (a) As used in this article, "merger"
means a procedure in which two or more limited liability companies or
other business entities merge into a single limited liability company or
other business entity that shall be one of the constituent limited
liability companies or other business entities, and "consolidation"
means a procedure in which two or more limited liability companies or
other business entities consolidate into a single limited liability
company or other business entity that shall be a new limited liability
company or other business entity to be formed pursuant to the
consolidation.
(b) Pursuant to an agreement of merger or consolidation and to the
extent not expressly prohibited by law, a domestic limited liability
company may merge or consolidate with or into one or more domestic
limited liability companies or other business entities formed or
organized under the laws of this state or any other state or the United
States or any foreign country or other foreign jurisdiction, with such
domestic limited liability company or other business entity as the
agreement shall provide being the surviving or resulting domestic
limited liability company or other business entity.
§ 1002. Procedures for merger or consolidation. (a) In connection with
a merger or consolidation under this chapter, rights or securities of,
or interests in, a limited liability company or other business entity
that is a constituent party to the merger or consolidation may be
exchanged for or converted into cash, property, rights or securities of,
or interests in, the surviving or resulting limited liability company or
other business entity or, in addition to or in lieu thereof, may be
exchanged for or converted into cash, property, rights or securities of,
or interests in, a limited liability company or other business entity
that is not the surviving or resulting limited liability company or
other business entity in the merger or consolidation.
(b) The members of each domestic limited liability company or other
business entity shall adopt (with respect to a domestic limited
liability company, in the manner provided in subdivision (c) of this
section) an agreement of merger or consolidation, setting forth the
terms and conditions of the conversion of the membership interests of
the members of the domestic limited liability company into interests in
the surviving or resulting limited liability company or other business
entity or the cash or other consideration to be paid or delivered in
exchange for membership interests in each domestic limited liability
company, or a combination thereof.
(c) The agreement of merger or consolidation shall be submitted to the
members of each domestic limited liability company who are entitled to
vote with respect to a merger or consolidation at a meeting called on
twenty days' notice or such greater notice as the operating agreement
may provide. Subject to any requirement in the operating agreement
requiring approval by any greater or lesser percentage in interest of
the members who are entitled to vote with respect to a merger or
consolidation, which shall not be less than a majority in interest of
those members who are so entitled to vote, the agreement shall be
approved on behalf of each domestic limited liability company (i) by
such voting interests of the members as shall be required by the
operating agreement, or (ii) if no provision is made, by the members
representing at least a majority in interest of the members.
(d) Notwithstanding authorization by the members, the agreement of
merger or consolidation may be terminated or amended pursuant to a
provision for such termination or amendment, if any, contained in the
agreement of merger or consolidation.
(e) Any member that is a party to a proposed merger or consolidation
who is entitled to vote with respect to such proposed merger or
consolidation may, prior to that time of the meeting at which such
merger or consolidation is to be voted on, file with the domestic
limited liability company written notice of dissent from the proposed
merger or consolidation. Such notice of dissent may be withdrawn by the
dissenting member at any time prior to the effective date of the merger
or consolidation and shall be deemed to be withdrawn if the member casts
a vote in favor of the proposed merger or consolidation.
(f) Upon the effectiveness of the merger or consolidation, the
dissenting member (referred to in subdivision (e) of this section) of
any domestic limited liability company shall not become or continue to
be a member of or hold an interest in the surviving or resulting limited
liability company or other business entity but shall be entitled to
receive in cash from the surviving or resulting domestic limited
liability company or other business entity the fair value of his or her
membership interest in the domestic limited liability company as of the
close of business of the day prior to the effective date of the merger
or consolidation in accordance with section five hundred nine of this
chapter but without taking account of the effect of the merger or
consolidation.
(g) A member of a domestic limited liability company who has a right
under this chapter to demand payment for his or her membership interest
shall not have any right at law or in equity under this chapter to
attack the validity of the merger or consolidation or to have the merger
or consolidation set aside or rescinded, except in an action or contest
with respect to compliance with the provisions of the operating
agreement or subdivision (c) of this section.
(h) A limited liability company whose original articles of
organization were filed with the secretary of state and effective prior
to the effective date of this subdivision shall continue to be governed
by this section as in effect on such date and shall not be governed by
this section, unless otherwise provided in the operating agreement.
§ 1003. Certificate of merger or consolidation; contents. (a) After
approval of the agreement of merger or consolidation by each domestic
limited liability company or other business entity merging or
consolidating under this article, unless the merger or consolidation is
terminated in accordance with subdivision (d) of section ten hundred two
of this article, paragraph (b) of section nine hundred three of the
business corporation law, or other applicable statute, and the surviving
or resulting entity is a limited liability company, foreign limited
liability company or other business entity for which the laws of this
state do not provide for the filing of a certificate of merger or
consolidation with the department of state, a certificate of merger or
consolidation, entitled "Certificate of merger (or consolidation) of
.... and .... into .... (names of domestic limited liability companies
or other business entities) under section one thousand three of the
Limited Liability Company Law," shall be signed on behalf of each
domestic limited liability company and other business entity and
delivered to the department of state. The certificate of merger or
consolidation shall set forth:
(1) the name and jurisdiction of formation or organization of each of
the domestic limited liability companies or other business entities that
are to merge or consolidate, and if the name of any of them has been
changed, the name under which it was formed;
(2) for each domestic limited liability company and domestic other
business entity that is to merge or consolidate, the date when its
initial articles of organization or formation document, if any, were
filed with the department of state;
(3) that an agreement of merger or consolidation has been approved and
executed by each of the domestic limited liability companies or other
business entities that are to merge or consolidate;
(4) the name of the surviving or resulting limited liability company,
foreign limited liability company or other business entity;
(5) the future effective date (which shall be a date certain) of the
merger or consolidation in accordance with subdivision (b) of this
section, if it is not to be effective upon the filing of the certificate
of merger or consolidation;
(6) if a domestic limited liability company is the surviving limited
liability company, such changes in its articles of organization as shall
be necessary by reason of the merger;
(7) if a domestic limited liability company is the resulting limited
liability company in a consolidation, the matters required to be set
forth under subdivision (e) of section two hundred three of this
chapter;
(8) if a constituent entity is a foreign limited liability company or
foreign other business entity, the jurisdiction and date of filing of
its initial articles of organization or formation document, if any, and
the date when its application for authority was filed by the department
of state or if no such application has been filed, a statement to such
effect and (if the constituent foreign limited liability company is the
surviving entity) that it is not to do business in this state until an
application for such authority shall have been filed with the department
of state;
(9) if the surviving or resulting entity is a foreign limited
liability company or other business entity, an agreement that the
foreign limited liability company or other business entity may be served
with process in this state in any action or special proceeding for the
enforcement of any liability or obligation of any domestic limited
liability company, domestic business corporation or domestic other
business entity previously amenable to suit in this state that is to
merge or consolidate, and for the enforcement as provided in this
chapter, of the right of members of any domestic limited liability
company, shareholders of any domestic business corporation or owners of
any domestic other business entity to receive payment for their
interests against the surviving or consolidated foreign limited
liability company;
(10) if the surviving or resulting entity is a foreign limited
liability company or other business entity, an agreement that, subject
to the provisions of section six hundred twenty-three of the business
corporation law, section one thousand five of this article, or any
applicable statute, the surviving or resulting foreign limited liability
company or other business entity will promptly pay to the shareholders
of each constituent domestic business corporation, the members of each
domestic limited liability company or owners of any constituent other
business entity the amount, if any, to which they shall be entitled
under the provisions of the business corporation law, any applicable
statute and this chapter relating to the right of shareholders, members
and owners to receive payment for their interests;
(11) a designation of the secretary of state as its agent upon whom
process against it may be served in the manner set forth in article
three of this chapter in any action or special proceeding, and a post
office address, within or without this state, to which the secretary of
state shall mail a copy of any process served upon him or her. The
limited liability company may include an email address to which the
secretary of state shall email a notice of the fact that process against
it has been electronically served upon him or her. Such post office
address or email address shall supersede any prior address designated as
the address to which process shall be mailed or a notice emailed;
(12) for each foreign limited liability company and foreign other
business entity, a statement that such merger or consolidation is
permitted by the jurisdiction of organization or formation and is in
compliance therewith;
(13) that the agreement of merger or consolidation is on file at a
place of business of the surviving or resulting limited liability
company or other business entity and shall state the address thereof;
and
(14) that a copy of the agreement of merger or consolidation will be
furnished by the surviving or resulting limited liability company or
other business entity on request and without cost, to any member of any
domestic limited liability company or any person holding an interest in
any other business entity that is to merge or consolidate.
(b) The merger or consolidation shall be effective upon the filing by
the department of state of the certificate, or at such later date not
more than thirty days after the date of such filing as the certificate
filed may provide.
(c) The surviving or resulting limited liability company or other
business entity shall thereafter cause a copy of such certificate,
certified by the department of state, to be filed in the office of the
clerk of each county in which each office of a constituent corporation
is located, and in the office of the official who is the recording
officer of each county in this state in which real property of a
constituent corporation is situated.
§ 1004. Effect of merger or consolidation. (a) When any merger or
consolidation shall have become effective under this chapter, for all
purposes of the laws of this state, all of the rights, privileges,
immunities, powers and purposes of each of the domestic limited
liability companies and other business entities that have merged or
consolidated, and all property, real, personal and mixed, tangible and
intangible, and all debts, obligations, liabilities, penalties and
duties of such domestic limited liability companies and other business
entities, as well as all other things belonging to each of such domestic
limited liability companies and other business entities, shall be vested
in the surviving or resulting domestic limited liability company or
other business entity, and shall thereafter be the property of the
surviving or resulting domestic limited liability company or other
business entity as they were of each of the domestic limited liability
companies and other business entities that have merged or consolidated,
and the title to any real property vested by deed or otherwise, under
the laws of this state, in any of such domestic limited liability
companies and other business entities, shall not revert or be in any way
impaired by reason of this chapter; but all rights of creditors and all
liens upon any property of any of such domestic limited liability
companies and other business entities shall be preserved unimpaired, and
all debts, obligations, liabilities, penalties and duties of each of
such domestic limited liability companies and other business entities
that have merged or consolidated shall thenceforth attach to the
surviving or resulting domestic limited liability company or other
business entity and may be enforced against it to the same extent as if
such debts, obligations, liabilities, penalties and duties had been
incurred or contracted by it.
(b) When any merger or consolidation shall have become effective under
this chapter, no action, suit or proceeding, civil or criminal, then
pending by or against any constituent limited liability company or other
business entity in its common name shall abate or be discontinued by
reason of such merger or consolidation, but may be prosecuted by or may
proceed against such surviving or resulting domestic limited liability
company or other business entity.
(c) Unless otherwise agreed, a merger or consolidation of a domestic
limited liability company, including a domestic limited liability
company that is not the surviving or resulting entity in the merger or
consolidation, shall not require such domestic limited liability company
to wind up its affairs under section seven hundred three of this chapter
or pay its liabilities and distribute its assets under section seven
hundred four of this chapter.
(d) A certificate of merger or consolidation shall act as articles of
dissolution for a domestic limited liability company that is not the
surviving or resulting entity in the merger or consolidation.
(e) Notwithstanding anything to the contrary contained in an operating
agreement, an operating agreement containing a specific reference to
this subdivision may provide that an agreement of merger or
consolidation approved in accordance with subdivision (c) of section ten
hundred two of this article may (i) effect any amendment to the
operating agreement or (ii) effect the adoption of a new operating
agreement for a domestic limited liability company if it is the
surviving or resulting domestic limited liability company in the merger
or consolidation. Any amendment to an operating agreement or adoption of
a new operating agreement made pursuant to the foregoing sentence shall
be effective at the effective time or date of the merger or
consolidation. The provisions of this subdivision shall not be construed
to limit the accomplishment of a merger or of any of the matters
referred to herein by any other means provided for in an operating
agreement or other agreement or as otherwise permitted by law, including
that the operating agreement of any domestic limited liability company
to the merger or consolidation (including a domestic limited liability
company formed for the purpose of consummating a merger or
consolidation) shall be the operating agreement of the surviving or
resulting domestic limited liability company.
§ 1005. Payment of interest of dissenting members. (a) Within ten days
after the occurrence of an event described in section ten hundred two of
this article, the surviving or resulting domestic limited liability
company or other business entity shall send to each dissenting former
member a written offer to pay in cash the fair value of such former
member's membership interest. Payment in cash shall be made to each
former member accepting such offer within ten days after notice of such
acceptance is received by the surviving or resulting domestic limited
liability company or other business entity.
(b) If a former member and the surviving or resulting limited
liability company or other business entity fail to agree on the price to
be paid for the former member's membership interest within ninety days
after the surviving or resulting domestic limited liability company or
other business entity shall have made the offer provided for in
subdivision (a) of this section, or if the domestic limited liability
company or surviving domestic limited liability company or other
business entity shall fail to make such an offer within the period
provided for in subdivision (a) of this section, the procedure provided
for in paragraphs (h), (i), (j) and (k) of section six hundred
twenty-three of the business corporation law (or any successor
provisions or statute) shall apply, as such paragraphs may be amended
from time to time.
(c) A payment under this section shall constitute a return of a
member's contribution for the purposes of section five hundred eight of
this chapter.
§ 1006. Conversion of partnership or limited partnership to limited
liability company. (a) As used in this article, unless the context
otherwise requires, the term, "limited partnership" means a limited
partnership formed under the laws of this state; and the terms "general
partner," "limited partner" and "majority in interest of the limited
partners" shall have the meanings assigned to such terms in article
eight-A of the partnership law; and the term "partnership" shall have
the meaning assigned to such term in article two of the partnership law.
(b) A partnership or limited partnership may be converted to a limited
liability company pursuant to this section.
(c) Subject to any requirements in the partnership agreement requiring
approval by any lesser percentage in interest of partners, an agreement
of conversion setting forth the terms and conditions of a conversion of
a partnership to a limited liability company must be approved by all of
the partners of the partnership. Subject to any requirement in the
partnership agreement requiring approval by any greater or lesser
percentage in interest of limited partners, which shall not be less than
a majority in interest, the terms and conditions of a conversion of a
limited partnership to a limited liability company must be approved (i)
by such a vote of general partners as shall be required by the
partnership agreement, or, if no provision is made, by all general
partners, and (ii) by limited partners representing at least a majority
in interest of each class of limited partners. The agreement of
conversion shall be submitted to the general partners and limited
partners of a limited partnership at a regular or special meeting called
on twenty days notice or such other notice as the partnership agreement
may provide. A dissenting limited partner shall have the rights provided
in article eight-A of the partnership law and shall not be a member of
the converted limited liability company. Notwithstanding authorization
by the partners of a partnership or general partners or limited partners
of a limited partnership, the conversion to a limited liability company
may be abandoned pursuant to a provision for such abandonment, if any,
contained in the agreement of conversion.
(d) The agreement of conversion shall set forth the terms and
conditions of the conversion of the interests of partners of a
partnership or general partners and limited partners of a limited
partnership, as the case may be, into membership interests in the
converted limited liability company or the cash or other consideration
to be paid or delivered as a result of the conversion of the interests
of such partners, or a combination thereof.
(e) In connection with any conversion approved under subdivision (c)
of this section, the partnership or limited partnership shall file with
the department of state a signed certificate entitled "Certificate of
Conversion of ... (name partnership or limited partnership) to ... (name
of limited liability company) under section one thousand six of the
Limited Liability Company Law" and shall also satisfy the publication
requirements of section two hundred six of this chapter. Such
certificate shall include either:
(A) (i) articles of organization for such limited liability company in
the same manner as if newly formed pursuant to section two hundred three
of this chapter;
(ii) a statement that the partnership or limited partnership was, in
accordance with the provisions of this chapter, duly converted to a
limited liability company from a partnership or limited partnership, as
the case may be; and
(iii) The name of such partnership or limited partnership and in the
case of a limited partnership the date its initial certificate was filed
with the department of state, or:
(B) where such partnership or limited partnership is being converted
into a limited liability company formed pursuant to section two hundred
three of this chapter prior to the conversion,
(i) the name of such partnership or limited partnership and in the
case of a limited partnership the date its initial certificate was filed
with the department of state;
(ii) a statement that the partnership or limited partnership was, in
accordance with the provisions of this chapter duly converted to a
limited liability company from a partnership or limited partnership, as
the case may be; and
(iii) the name of the limited liability company and the date its
articles of organization were filed with the department of state.
(f) If the limited partnership is a domestic limited partnership, such
domestic limited partnership shall cancel its certificate of limited
partnership pursuant to article eight-A of the partnership law. The
certificate of cancellation shall include the name of the limited
liability company and a statement that the limited partnership will be
converted into a limited liability company upon the filing of such
certificate.
(g) The conversion takes effect, in the case of a partnership, when
the certificate of conversion is filed with the department of state or
at any later date specified in the certificate of conversion or, in the
case of a limited partnership, when the certificate of limited
partnership is canceled.
(h) A partner or, in the case of a limited partnership, a general
partner who becomes a member of a limited liability company as a result
of a conversion, remains liable as a partner or general partner, as the
case may be, for any debt, obligation, liability and penalty incurred by
the partnership or limited partnership before the conversion takes
effect. A limited partner who becomes a member as a result of a
conversion remains liable only as a limited partner for a debt,
obligation, liability or penalty incurred by the limited partnership
before the conversion takes effect. The partner's, general partner's or
limited partner's liability, if any, for a debt, obligation, liability
or penalty incurred by the limited liability company after the
conversion takes effect is that of a member as provided in this chapter.
(i) A limited liability company whose original articles of
organization were filed with the secretary of state and effective prior
to the effective date of this subdivision shall continue to be governed
by this section as in effect on such date and shall not be governed by
this section, unless otherwise provided in the operating agreement.
§ 1007. Effect of conversion. (a) A partnership or limited partnership
that has been converted pursuant to this chapter is for all purposes the
same entity that existed before the conversion.
(b) When a conversion takes effect:
(i) all property, real and personal, tangible and intangible, of the
converting partnership or limited partnership remains vested in the
converted limited liability company;
(ii) all debts, obligations, liabilities and penalties of the
converting partnership or limited partnership continue as debts,
obligations, liabilities and penalties of the converted limited
liability company;
(iii) any action, suit or proceeding, civil or criminal, then pending
by or against the converting partnership or limited partnership may be
continued as if the conversion had not occurred; and
(iv) to the extent provided in the agreement of conversion and in this
chapter, the partners of a partnership or the general partners and
limited partners of a limited partnership shall continue as members in
the converted limited liability company.
§ 1101. Fees. Except as otherwise provided, the department of state
shall collect the following fees pursuant to this chapter:
(a) For the reservation of a limited liability company name pursuant
to section two hundred five of this chapter, twenty dollars.
(b) For the change of address of the post office address to which the
secretary of state shall mail a copy of any process against the limited
liability company served upon him or her pursuant to section three
hundred one of this chapter, twenty dollars.
(c) For the statement of address of the post office address to which
the secretary of state shall mail a copy of any process against the
limited liability company served upon him or her pursuant to section
three hundred one of this chapter, nine dollars. This fee shall not
apply to statements submitted through the department of taxation and
finance pursuant to paragraph two of subdivision (e) of section three
hundred one of this chapter.
(d) For the change of address of a registered agent for service of
process by such registered agent pursuant to section three hundred two
of this chapter, twenty dollars.
(e) For the resignation of a registered agent for service of process
pursuant to section three hundred two of this chapter, twenty dollars.
(f) For filing articles of organization pursuant to section two
hundred nine of this chapter, two hundred dollars.
(g) For filing a certificate of amendment pursuant to section two
hundred eleven of this chapter, sixty dollars.
(h) For filing articles of dissolution pursuant to section seven
hundred five of this chapter, sixty dollars.
(i) For filing restated articles of organization pursuant to section
two hundred fourteen of this chapter, sixty dollars.
(j) For filing a judicial dissolution pursuant to section seven
hundred two of this chapter, sixty dollars.
(k) For filing an application for authority pursuant to section eight
hundred two of this chapter, two hundred fifty dollars.
(l) For filing an amendment to an application for authority pursuant
to section eight hundred four of this chapter, sixty dollars.
(m) For filing a certificate of surrender of authority pursuant to
section eight hundred six of this chapter, sixty dollars.
(n) For filing a certificate of termination of existence pursuant to
section eight hundred seven of this chapter, sixty dollars.
(o) For filing a certificate of merger or consolidation pursuant to
section ten hundred three of this chapter, sixty dollars.
(p) For filing an application for cancellation of reservation of name
pursuant to section two hundred five of this chapter, twenty dollars.
(q) For filing a certificate of correction pursuant to section two
hundred twelve of this chapter, sixty dollars.
(r) For filing a certificate of conversion pursuant to section one
thousand six of this chapter, two hundred dollars.
(s) For filing a certificate of publication with affidavits of
publication annexed thereto pursuant to section two hundred six, eight
hundred two, twelve hundred three or thirteen hundred six of this
chapter, fifty dollars.
(t) For filing a certificate of resignation for receipt for process
pursuant to section three hundred one-A of this chapter, ten dollars.
(u) For service of process on the secretary of state pursuant to
subdivision (e) of section three hundred one-A or pursuant to section
three hundred three of this chapter, forty dollars. No fee shall be
collected for process served on behalf of a county, city, town or
village or other political subdivision of the state.
(v) For filing a certificate of change pursuant to subdivision (a) of
section two hundred eleven-A or subdivision (a) of section eight hundred
four-A of this chapter, thirty dollars, and for filing a certificate of
change pursuant to subdivision (b) of section two hundred eleven-A or
subdivision (b) of section eight hundred four-A of this chapter, five
dollars.
§ 1102. Records. (a) Each domestic limited liability company shall
maintain the following records, which may, but need not, be maintained
in this state:
(1) if the limited liability company is managed by a manager or
managers, a current list of the full name set forth in alphabetical
order and last known mailing address of each such manager;
(2) a current list of the full name set forth in alphabetical order
and last known mailing address of each member together with the
contribution and the share of profits and losses of each member or
information from which such share can be readily derived;
(3) a copy of the articles of organization and all amendments thereto
or restatements thereof, together with executed copies of any powers of
attorney pursuant to which any certificate or amendment has been
executed;
(4) a copy of the operating agreement, any amendments thereto and any
amended and restated operating agreement; and
(5) a copy of the limited liability company's federal, state and local
income tax or information returns and reports, if any, for the three
most recent fiscal years.
(b) Any member may, subject to reasonable standards as may be set
forth in, or pursuant to, the operating agreement, inspect and copy at
his or her own expense, for any purpose reasonably related to the
member's interest as a member, the records referred to in subdivision
(a) of this section, any financial statements maintained by the limited
liability company for the three most recent fiscal years and other
information regarding the affairs of the limited liability company as is
just and reasonable.
(c) If provided in the operating agreement, certain members or
managers shall have the right to keep confidential from other members
for such period of time as such certain members or the managers deem
reasonable, any information which such certain members or the managers
reasonably believe to be in the nature of trade secrets or other
information the disclosure of which such certain members or the managers
in good faith believe is not in the best interest of the limited
liability company or its business or which the limited liability company
is required by law or by agreement with a third party to keep
confidential.
(d) A limited liability company may maintain its records in other than
a written form if such form is capable of conversion into written form
within a reasonable time.
§ 1103. Transactions of business outside the state. (a) It is the
intention of the legislature by the enactment of this chapter that the
legal existence of a limited liability company formed under this chapter
be recognized beyond the limits of this state and that, subject to any
reasonable registration requirements, any such limited liability company
transacting business outside this state shall be granted the protection
of full faith and credit under section l of article IV of the
Constitution of the United States.
(b) The provisions of this chapter shall determine the rights and
obligations of a domestic limited liability company, organized under
this chapter, in commerce with foreign nations and among the several
states, except as prohibited by law.
§ 1104. Limited liability companies prohibited from interposing
defense of usury. (a) No domestic or foreign limited liability company
shall hereafter interpose the defense of usury in any action.
(b) The provisions of subdivision (a) of this section shall not apply
to a domestic or foreign limited liability company, the principal asset
of which is the ownership of a one or two family dwelling, where it
appears either that such limited liability company was formed, or that
the controlling interest therein was acquired, within a period of six
months prior to the execution by such limited liability company of a
bond or note evidencing indebtedness, and a mortgage creating a lien for
such indebtedness on such one or two family dwelling.
Any provision of any contract, or any separate written instrument
executed prior to, simultaneously with or within sixty days after the
delivery of any moneys to any borrower in connection with such
indebtedness, whereby the defense of usury is waived or any such limited
liability company estopped from asserting it, is hereby declared to be
contrary to public policy and absolutely void.
(c) The provisions of subdivision (a) of this section shall not apply
to any action in which a limited liability company interposes a defense
of criminal usury as described in section 190.40 of the penal law.
§ 1105. Limited liability geology company. (a) Prior to the first day
of March, two thousand nineteen, the state education department and the
department of state shall allow an existing limited liability company
organized under article two of this chapter to become a professional
service limited liability company as defined in article twelve of this
chapter for the purpose of practicing professional geology, provided the
limited liability company meet all of the requirements to become a
professional service limited liability company, including that the name
of a professional service limited liability company shall end with the
words "Professional Limited Liability Company" or "Limited Liability
Company", or the abbreviations "P.L.L.C.", "PLLC", "L.L.C.", or "LLC" by
amending its articles of organization so that it contains the following:
(1) the names and residence addresses of all individuals who are to be
the original members and the original managers, if any;
(2) a statement that the professional limited liability company is
formed pursuant to section twelve hundred three of the limited liability
company law; and
(3) a statement that the amendment shall not effect a dissolution of
the limited liability company, but shall be deemed a continuation of its
existence, without affecting its then existing property rights or
liabilities or the liabilities of its members or officers as such, but
thereafter it shall have only such rights, powers and privileges, and be
subject only to such other duties and liabilities, as a professional
service limited liability company created for the same purposes under
this article.
(b) The certificate of amendment shall have attached thereto a
certificate or certificates issued by the licensing authority certifying
that each of the proposed members and managers listed:
(1) is authorized by law to practice a profession which the
professional service limited liability company is organized to practice
and, if applicable, that one or more of such individuals is authorized
to practice each profession which the professional service limited
liability company will be authorized to practice; and
(2) has been deemed to be of good moral character as may be
established by the regulations of the commissioner of education.
(c) The certificate of amendment shall also have attached thereto a
tax clearance issued by the department of taxation and finance
certifying that the existing limited liability company is current with
respect to payment of its state tax liabilities.
(d) Notwithstanding any provision of law to the contrary, any company
formed under this section shall be required to comply with all
applicable laws, rules, or regulations relating to the practice of a
profession under title eight of the education law.
§ 1106. Definitions. For the purposes of this section and sections
eleven hundred seven and eleven hundred eight of this article:
(a) "Beneficial owner" shall have the same meaning as defined in 31
U.S.C. § 5336(a)(3), as amended, and any regulations promulgated
thereunder.
(b) "Reporting company" shall have the same meaning as defined in 31
U.S.C. § 5336(a)(11), as amended, and any regulations promulgated
thereunder, but shall only include limited liability companies formed or
authorized to do business in New York state.
(c) "Exempt company" shall mean a limited liability company or foreign
limited liability company not otherwise defined as a reporting company
that meets a condition for exemption enumerated in 31 U.S.C. §
5336(a)(11)(B).
(d) "Applicant" shall have the same meaning as defined in 31 U.S.C. §
5336(a)(2), as amended, and any regulations promulgated thereunder, but
shall only include those relating to limited liability companies.
§ 1107. Beneficial ownership disclosure. (a) All reporting companies
shall file with the department of state a beneficial ownership
disclosure in such form and manner as directed by the department of
state, identifying each beneficial owner of the reporting company and
each applicant with respect to that reporting company, by: (1) full
legal name; (2) date of birth; (3) current home or business street
address; and (4) a unique identifying number from: (i) an unexpired
passport; (ii) an unexpired state driver's license; or (iii) an
unexpired identification card or document issued by a state or local
government agency or tribal authority for the purpose of identification
of that individual.
(b) All exempt companies shall electronically file, under penalty of
perjury, an attestation of exemption in such form designated by the
department of state, which statement shall include the specific
exemption claimed and the facts on which such exemption is based. Any
company filing an exemption pursuant to this subdivision shall be
subject to the annual statement requirement as stated in subdivision (g)
of this section in the form prescribed by the department, which
statement shall be attested to under penalty of perjury.
(c) All beneficial ownership disclosures, attestations of exemption,
and filing fees shall be submitted electronically as prescribed by the
department of state. The beneficial ownership disclosure or attestation
of exemption shall be signed electronically consistent with the
provisions of article three of the state technology law.
(d) Within thirty days of an initial filing of articles of
organization or an application for authority pursuant to this chapter, a
reporting company shall file with the department of state a beneficial
ownership disclosure that complies with subdivision (a) of this section.
Within thirty days of an initial filing of articles of organization or
an application for authority pursuant to this chapter, an exempt company
shall file with the department of state an attestation of exemption that
complies with subdivision (b) of this section.
(e) Within one year of the effective date of this section, all
previously formed or authorized reporting companies shall file with the
department of state a beneficial ownership disclosure that complies with
subdivision (a) of this section. Within one year of the effective date
of this section, all previously formed or authorized exempt companies
shall file with the department of state an attestation of exemption that
complies with subdivision (b) of this section.
(f) All information relating to beneficial owners who are natural
persons collected by the department of state in accordance with this
section shall be maintained in a secure database and shall be deemed
confidential except: (1) pursuant to the written request of or by
voluntary written consent of the beneficial owner; (2) by court order;
(3) to officers or employees of another federal, state or local
government agency where disclosure is necessary for the agency to
perform its official duties as required by statute or necessary to
operate a program specifically authorized by law; or (4) for a valid law
enforcement purpose including as relevant to any law enforcement
investigation by the office of the attorney general. Any beneficial
ownership information disclosed by department of state shall not be
further disclosed by any recipient except as authorized in law or as
otherwise necessary to the performance of statutory duties.
(g) Once the initial beneficial ownership disclosure has been filed,
all reporting companies shall electronically file with the department of
state an annual statement confirming or updating: (1) their beneficial
ownership disclosure information; (2) the street address of its
principal executive office; (3) status as exempt company, if applicable;
and (4) such other information as may be designated by the department of
state.
(h) The department of state shall establish provisions for sharing
information with agencies permitted to access information relating to
beneficial owners in accordance with subdivision (f) of this section.
§ 1108. Violations and Penalties. (a) (1) A reporting company which
has failed to file its beneficial ownership disclosure, attestation of
exemption, or annual statement as required by this article for a period
exceeding thirty days shall be shown to be past due on the records of
the department of state.
(2) The attorney general may assess a fine of up to five hundred
dollars for each day the company has been past due.
(3) In addition to any action brought seeking relief under paragraph
two of this subdivision, such past due status shall be removed from the
records of the department of state upon the filing of the current
statement required by section 1107 of this article, the payment of a
fine of two hundred fifty dollars, and verification from the attorney
general that any penalties imposed pursuant to paragraph two of this
subdivision have been paid.
(b) (1) A reporting company which has failed to file its beneficial
ownership disclosure, attestation of exemption, or annual statement as
required by this section for a period exceeding two years shall be shown
to be delinquent on the records of the department of state.
(2) The attorney general may assess a fine of up to five hundred
dollars for each day the company has been delinquent.
(3) In addition to any action brought seeking relief under paragraph
two of this subdivision, such delinquency shall be removed from the
records of the department of state upon the filing of the current
statement required by section 1107 of this article, the payment of a
fine of two hundred fifty dollars, and verification from the attorney
general that any penalties imposed pursuant to paragraph two of this
subdivision have been paid.
(c) It shall be unlawful for any person to knowingly provide, or
attempt to provide, false or fraudulent beneficial ownership
information, including a false or fraudulent identifying photograph or
document, to the department of state in accordance with this article. A
person shall not be in violation of this subdivision if such person
voluntarily and promptly, and in no case later than ninety days after
the date after the submission of beneficial ownership information,
provides the corrected information in the form and manner prescribed by
the department of state, unless the false or fraudulent information was
willfully submitted for the purpose of evading the requirements of this
article.
(d) In addition to any existing authority, the New York state attorney
general may investigate any violation of subdivision (c) of this section
and any limited liability company that fails to file its beneficial
ownership disclosure, annual statements, or attestation of exemption as
required by section eleven hundred seven of this article. The department
of state may refer, for an investigation, to the attorney general any
limited liability company for any violation of the provisions of this
article. The New York state attorney general may seek a fine of up to
five hundred dollars for each day the company has been past due in
filing its beneficial ownership disclosure or attestation of exemption.
(e) (1) The New York state attorney general may bring an action under
this section to dissolve or cancel any entity that is delinquent in
filing it's beneficial ownership disclosure or attestation of exemption
or has violated provisions of subdivision (c) of this section. If in the
court's discretion it shall appear that the limited liability company
should be dissolved and cancelled or the foreign limited liability
company's authority to do business in this state should be annulled, it
shall make a judgment or final order dissolving the limited liability
company or annulling the authority of the foreign limited liability
company.
(2) If the judgment or final order shall provide for a dissolution and
cancellation of the limited liability company or the annulment of
authority of the foreign limited liability company, the court may, in
its discretion, provide therein for the distribution of the property of
the limited liability company to those entitled thereto according to
their respective rights.
(3) The clerk of the court or such other person as the court may
direct shall transmit certified copies of the judgment or final order of
dissolution to the department of state.
(4) Upon filing by the department of state, the limited liability
company shall be dissolved and its articles of organization cancelled or
the authority of the foreign limited liability company shall be
annulled.
(f) Any penalties provided for in this section shall be in addition to
and may be imposed concurrently with any other remedy or penalty
otherwise provided for in law.
(g) Any reporting or exempt company that fails to file its beneficial
ownership disclosure or attestation of exemption in accordance with
section 1107 of this article shall be deemed suspended. Any reporting or
exempt company that fails to file its beneficial ownership disclosure or
attestation of exemption in accordance with section 1107 of this article
shall be given notice by the department of state of such suspension, at
least thirty days prior to any change of status. A reporting company or
exempt company that is suspended by operation of this subdivision shall
not conduct business in New York state until its beneficial ownership
disclosure or attestation of exemption has been filed, at which point
the suspension shall be deemed annulled and all corporate powers,
rights, privileges, immunities, duties and liabilities shall be restored
retroactively. The suspension of a reporting or exempt company shall not
limit or impair the validity of any contract or act of such reporting or
exempt company, or any right or remedy of any other party under or by
virtue of any contract, act or omission of such reporting or exempt
company, or the right of any other party to maintain any action or
special proceeding on any such contract, act or omission, or right of
such reporting or exempt company to defend any action or special
proceeding in this state, or result in any member, manager or agent of
such reporting or exempt company becoming liable for the contractual
obligations or other liabilities of the limited liability company.
(h) The secretary of state may promulgate regulations necessary to
effectuate the provisions of this article.
§ 1201. Definitions. As used in this article, unless the context
otherwise requires, the term:
(a) "Licensing authority" means the regents of the university of the
state of New York or the state education department, as the case may be,
in the case of all professions licensed under title eight of the
education law, and the appropriate appellate division of the supreme
court in the case of the profession of law.
(b) "Profession" includes any practice as an attorney and
counselor-at-law, or as a licensed physician, and those professions
designated in title eight of the education law.
(c) "Professional" means an individual duly authorized to practice a
profession, a professional service corporation, a professional service
limited liability company, a foreign professional service limited
liability company, a registered limited liability partnership, a foreign
limited liability partnership, a foreign professional service
corporation or a professional partnership.
(d) "Professional service" means any type of service to the public
that may be lawfully rendered by a member of a profession within the
purview of his or her profession.
(e) "Professional service corporation" means (i) a corporation
organized under article fifteen of the business corporation law and (ii)
any other corporation organized under the business corporation law or
under any other predecessor statute, which is authorized by, or holds a
license, certificate, registration or permit issued by, the licensing
authority pursuant to the education law to render professional services
within this state.
(f) "Professional service limited liability company" means a limited
liability company organized under this article.
(g) "Foreign professional service corporation" has the meaning given
to it in subdivision (d) of section fifteen hundred twenty-five of the
business corporation law.
(h) "Foreign professional service limited liability company" has the
meaning given to it in subdivision (a) of section thirteen hundred one
of this chapter.
(i) "Professional partnership" means (1) a partnership without limited
partners each of whose partners is a professional authorized by law to
render a professional service within this state, (2) a partnership
without limited partners each of whose partners is a professional, at
least one of whom is authorized by law to render a professional service
within this state or (3) a partnership without limited partners
authorized by, or holding a license, certificate, registration or permit
issued by the licensing authority pursuant to the education law to
render a professional service within this state.
§ 1202. Limited liability companies organized under other provisions
of law. The provisions of this article shall not apply to limited
liability companies heretofore or hereafter duly formed under any other
provision of law.
§ 1203. Formation. (a) Notwithstanding the education law or any other
provision of law, one or more professionals each of whom is authorized
by law to render a professional service within the state, or one or more
professionals, at least one of whom is authorized by law to render a
professional service within the state, may form, or cause to be formed,
a professional service limited liability company for pecuniary profit
under this article for the purpose of rendering the professional service
or services as such professionals are authorized to practice. With
respect to a professional service limited liability company formed to
provide medical services as such services are defined in article 131 of
the education law, each member of such limited liability company must be
licensed pursuant to article 131 of the education law to practice
medicine in this state. With respect to a professional service limited
liability company formed to provide dental services as such services are
defined in article 133 of the education law, each member of such limited
liability company must be licensed pursuant to article 133 of the
education law to practice dentistry in this state. With respect to a
professional service limited liability company formed to provide
veterinary services as such services are defined in article 135 of the
education law, each member of such limited liability company must be
licensed pursuant to article 135 of the education law to practice
veterinary medicine in this state. With respect to a professional
service limited liability company formed to provide professional
engineering, land surveying, architectural, landscape architectural
and/or geological services as such services are defined in article 145,
article 147 and article 148 of the education law, each member of such
limited liability company must be licensed pursuant to article 145,
article 147 and/or article 148 of the education law to practice one or
more of such professions in this state. With respect to a professional
service limited liability company formed to provide licensed clinical
social work services as such services are defined in article 154 of the
education law, each member of such limited liability company shall be
licensed pursuant to article 154 of the education law to practice
licensed clinical social work in this state. With respect to a
professional service limited liability company formed to provide
creative arts therapy services as such services are defined in article
163 of the education law, each member of such limited liability company
must be licensed pursuant to article 163 of the education law to
practice creative arts therapy in this state. With respect to a
professional service limited liability company formed to provide
marriage and family therapy services as such services are defined in
article 163 of the education law, each member of such limited liability
company must be licensed pursuant to article 163 of the education law to
practice marriage and family therapy in this state. With respect to a
professional service limited liability company formed to provide mental
health counseling services as such services are defined in article 163
of the education law, each member of such limited liability company must
be licensed pursuant to article 163 of the education law to practice
mental health counseling in this state. With respect to a professional
service limited liability company formed to provide psychoanalysis
services as such services are defined in article 163 of the education
law, each member of such limited liability company must be licensed
pursuant to article 163 of the education law to practice psychoanalysis
in this state. With respect to a professional service limited liability
company formed to provide applied behavior analysis services as such
services are defined in article 167 of the education law, each member of
such limited liability company must be licensed or certified pursuant to
article 167 of the education law to practice applied behavior analysis
in this state. In addition to engaging in such profession or
professions, a professional service limited liability company may engage
in any other business or activities as to which a limited liability
company may be formed under section two hundred one of this chapter.
Notwithstanding any other provision of this section, a professional
service limited liability company (i) authorized to practice law may
only engage in another profession or business or activities or (ii)
which is engaged in a profession or other business or activities other
than law may only engage in the practice of law, to the extent not
prohibited by any other law of this state or any rule adopted by the
appropriate appellate division of the supreme court or the court of
appeals.
(b) The articles of organization of a professional service limited
liability company shall meet the requirements of this chapter and (i)
shall state the profession or professions to be practiced by such
limited liability company and (A) the names and residence addresses of
all individuals who are to be the original members and the original
managers, if any, of such limited liability company, and (B) the names
and residence addresses or, if none, the business address of all
shareholders, directors, officers, members, managers and partners of all
professional service corporations, foreign professional service
corporations, professional service limited liability companies, foreign
professional service limited liability companies, registered limited
liability partnerships, foreign limited liability partnerships, and
professional partnerships who are to be the original members or
managers, if any, who are individuals of such limited liability company,
(ii) shall have attached thereto a certificate or certificates issued by
the licensing authority or by the comparable authority of another state
certifying that each of the proposed members and managers, if any, who
are individuals is authorized by law to practice a profession that such
limited liability company is being formed to practice and, if
applicable, that one or more of such individuals are authorized to
practice within the state each profession that such limited liability
company will be authorized to practice, and (iii) if such proposed
member or manager, if any, is a professional service corporation,
foreign professional service corporation, professional service limited
liability company, foreign professional service limited liability
company, registered limited liability partnership, foreign limited
liability partnership or professional partnership, (A) such certificate
or certificates issued by the licensing authority or by the comparable
authority of another state shall certify either (1) that each proposed
member or manager is authorized by law to practice a profession that
such limited liability company is being formed to practice and, if
applicable, that each shareholder, member or partner of such proposed
member or manager is authorized by law to render a professional service
within the state or (2) that one or more of such proposed members and
one or more of such proposed managers, are authorized to practice within
the state each profession that such limited liability company will be
authorized to practice and that one or more of the shareholders, members
or partners of such proposed members or managers are authorized to
practice within the state each profession that such limited liability
company will be authorized to practice within the state and (B) there
shall be attached to the articles of organization of the professional
service limited liability company a certificate by an authorized officer
of the jurisdiction of its formation that the professional service
corporation, foreign professional service corporation, professional
service limited liability company, foreign professional service limited
liability company, registered limited liability partnership or foreign
limited liability partnership is validly existing and, in the case of a
foreign professional service corporation, foreign professional service
limited liability company or foreign limited liability partnership, a
certificate from the secretary of state that such foreign professional
service corporation, foreign professional service limited liability
company or foreign limited liability partnership is authorized to do
business under article fifteen-A of the business corporation law, under
article thirteen of this chapter or under article eight-B of the
partnership law, as the case may be.
(c) (1) A certified copy of the articles of organization and of each
amendment thereto and restatement thereof shall be filed by the
professional service limited liability company with the licensing
authority within thirty days after the filing of such certificate or
amendment with the department of state.
(2) (A) Within one hundred twenty days after the filing of the
articles of organization, a copy of the same or a notice containing the
substance thereof shall be published once in each week for six
successive weeks, in two newspapers of the county in which the office of
the professional service limited liability company is located, one
newspaper to be printed weekly and one newspaper to be printed daily, to
be designated by the county clerk. When such county is located within a
city with a population of one million or more, such designation shall be
as though the copy or notice were a notice or advertisement of judicial
proceedings. Proof of the publication required by this subparagraph,
consisting of the certificate of publication of the professional service
limited liability company with the affidavits of publication of such
newspapers annexed thereto, be filed with the department of state.
Notwithstanding any other provision of law, if the office of the
professional service limited liability company is located in a county
wherein a weekly or daily newspaper of the county, or both, has not been
so designated by the county clerk, then the publication herein required
shall be made in a weekly or daily newspaper of any county, or both, as
the case may be, which is contiguous to, such county, provided that any
such newspaper meets all the other requirements of this subparagraph. A
copy or notice published in a newspaper other than the newspaper or
newspapers designated by the county clerk shall not be deemed to be one
of the publications required by this subparagraph. The notice shall
include: (i) the name of the professional service limited liability
company; (ii) the date of filing of the articles of organization with
the department of state; (iii) the county within this state, in which
the office of the professional service limited liability company is
located; (iii-a) the street address of the principal business location,
if any; (iv) a statement that the secretary of state has been designated
as agent of the professional service limited liability company upon whom
process against it may be served and the post office address within or
without this state to which the secretary of state shall mail a copy of
any process against it served upon him or her; (v) if the professional
service limited liability company is to have a registered agent, his or
her name and address within this state and a statement that the
registered agent is to be the agent of the professional service limited
liability company upon whom process against it may be served; (vi) if
the professional service limited liability company is to have a specific
date of dissolution in addition to the events of dissolution set forth
in section seven hundred one of this chapter, the latest date upon which
the professional service limited liability company is to dissolve; and
(vii) the character or purpose of the business of such professional
service limited liability company. Where, at any time after completion
of the first of the six weekly publications required by this
subparagraph and prior to the completion of the sixth such weekly
publication, there is a change in any of the information contained in
the copy or notice as published, the professional service limited
liability company may complete the remaining publications of the
original copy or notice, and the professional service limited liability
company shall not be required to publish any further or amended copy or
notice. Where, at any time after completion of the six weekly
publications required by this subparagraph, there is a change to any of
the information contained in the copy or notice as published, no further
or amended publication or republication shall be required to be made. If
within one hundred twenty days after its formation, proof of such
publication, consisting of the certificate of publication of the
professional service limited liability company with the affidavits of
publication of the newspapers annexed thereto has not been filed with
the department of state, the authority of such professional service
limited liability company to carry on, conduct or transact any business
in this state shall be suspended, effective as of the expiration of such
one hundred twenty day period. The failure of a professional service
limited liability company to cause such copy or notice to be published
and such certificate of publication and affidavits of publication to be
filed with the department of state within such one hundred twenty day
period or the suspension of such professional service limited liability
company's authority to carry on, conduct or transact business in this
state pursuant to this subparagraph shall not limit or impair the
validity of any contract or act of such professional service limited
liability company, or any right or remedy of any other party under or by
virtue of any contract, act or omission of such professional service
limited liability company, or the right of any other party to maintain
any action or special proceeding on any such contract, act or omission,
or right of such professional service limited liability company to
defend any action or special proceeding in this state, or result in any
member, manager or agent of such professional service limited liability
company becoming liable for the contractual obligations or other
liabilities of the professional service limited liability company. If,
at any time following the suspension of a professional service limited
liability company's authority to carry on, conduct or transact business
in this state pursuant to this subparagraph, such professional service
limited liability company shall cause proof of publication in
substantial compliance with the provisions (other than the one hundred
twenty day period) of this subparagraph, consisting of the certificate
of publication of the professional service limited liability company
with the affidavits of publication of the newspapers annexed thereto, to
be filed with the department of state, such suspension of such
professional service limited liability company's authority to carry on,
conduct or transact business shall be annulled.
(B)(i) A professional service limited liability company which was
formed prior to the effective date of this subparagraph and which
complied with the publication and filing requirements of this paragraph
as in effect prior to such effective date shall not be required to make
any publication or republication or any filing under subparagraph (A) of
this paragraph, and shall not be subject to suspension pursuant to this
paragraph.
(ii) Within twelve months after the effective date of this
subparagraph, a professional service limited liability company which was
formed prior to such effective date and which did not comply with the
publication and filing requirements of this paragraph as in effect prior
to such effective date shall publish a copy of its articles of
organization or a notice containing the substance thereof in the manner
required (other than the one hundred twenty day period) by this
paragraph as in effect prior to such effective date and file proof of
such publication, consisting of the certificate of publication of the
professional service limited liability company with the affidavits of
publication of the newspapers annexed thereto, with the department of
state.
(iii) If a professional service limited liability company that is
subject to the provisions of clause (ii) of this subparagraph fails to
file the required proof of publication with the department of state
within twelve months after the effective date of this subparagraph, its
authority to carry on, conduct or transact any business in this state
shall be suspended, effective as of the expiration of such twelve month
period.
(iv) The failure of a professional service limited liability company
that is subject to the provisions of clause (ii) of this subparagraph to
fully comply with the provisions of said clause (ii) or the suspension
of such professional service limited liability company's authority to
carry on, conduct or transact any business in this state pursuant to
clause (iii) of this subparagraph shall not impair or limit the validity
of any contract or act of such professional service limited liability
company, or any right or remedy of any other party under or by virtue of
any contract, act or omission of such professional service limited
liability company, or the right of any other party to maintain any
action or special proceeding on any such contract, act or omission, or
right of such professional service limited liability company to defend
any action or special proceeding in this state, or result in any member,
manager or agent of such professional service limited liability company
becoming liable for the contractual obligations or other liabilities of
the professional service limited liability company.
(v) If, at any time following the suspension of a professional service
limited liability company's authority to carry on, conduct or transact
business in this state, pursuant to clause (iii) of this subparagraph,
such professional service limited liability company shall cause proof of
publication in substantial compliance with the provisions (other than
the one hundred twenty day period) of subparagraph (A) of this
paragraph, consisting of the certificate of publication of the
professional service limited liability company with the affidavits of
publication of the newspapers annexed thereto, to be filed with the
department of state, such suspension of such professional service
limited liability company's authority to carry on, conduct or transact
business shall be annulled.
(vi) For the purposes of this subparagraph, a professional service
limited liability company which was formed prior to the effective date
of this subparagraph shall be deemed to have complied with the
publication and filing requirements of this paragraph as in effect prior
to such effective date if (i) the professional service limited liability
company was formed on or after January first, nineteen hundred
ninety-nine and prior to such effective date and the professional
service limited liability company filed at least one affidavit of the
printer or publisher of a newspaper with the department of state at any
time prior to such effective date, or (ii) the professional service
limited liability company was formed prior to January first, nineteen
hundred ninety-nine, without regard to whether the professional service
limited liability company did or did not file any affidavit of the
printer or publisher of a newspaper with the secretary of state.
(C) The information in a notice published pursuant to this paragraph
shall be presumed to be in compliance with and satisfaction of the
requirements of this paragraph.
(d) A professional service limited liability company, other than a
professional service limited liability company authorized to practice
law, shall be under the supervision of the regents of the university of
the state of New York and be subject to disciplinary proceedings and
penalties, and its articles of organization shall be subject to
suspension, revocation or annulment for cause, in the same manner and to
the same extent as is provided with respect to individuals and their
licenses, certificates and registrations in title eight of the education
law relating to the applicable profession. Notwithstanding the
provisions of this subdivision, a professional service limited liability
company authorized to practice medicine shall be subject to the
pre-hearing procedures and hearing procedures as are provided with
respect to individual physicians and their licenses in Title II-A of
article two of the public health law.
(e) A professional service limited liability company authorized to
practice law shall be subject to the regulation and control of, and its
articles of organization shall be subject to suspension, revocation or
annulment for cause by, the appellate division of the supreme court and
the court of appeals in the same manner and to the same extent provided
in the judiciary law with respect to individual attorneys and
counselors-at-law. Such limited liability company need not qualify for
any certification under section four hundred sixty-four of the judiciary
law, take an oath of office under section four hundred sixty-six of the
judiciary law or register under section four hundred sixty-seven of the
judiciary law.
(f) The order of suspension, revocation or annulment of the articles
of organization of a professional service limited liability company
pursuant to subdivisions (d) and (e) of this section shall be effective
upon the filing of such order with the department of state.
§ 1204. Rendering of professional service. (a) No professional service
limited liability company may render a professional service except
through individuals authorized by law to render such professional
service, as individuals, provided, that nothing in this chapter shall
authorize a professional service limited liability company to render a
professional service in this state except through individuals authorized
by law to render such professional service as individuals in this state.
(b) Each final plan and report made or issued by a professional
service limited liability company practicing professional engineering,
architecture, landscape architecture or land surveying shall bear the
name and seal of one or more professional engineers, architects,
landscape architects or land surveyors, respectively, who are in
responsible charge of such plan or report.
(c) Each report, diagnosis, prognosis and prescription made or issued
by a professional service limited liability company practicing medicine,
dentistry, podiatry, optometry, ophthalmic dispensing, veterinary
medicine, pharmacy, nursing, psychology, physical therapy or
chiropractic shall bear the signature of one or more physicians,
dentists, podiatrists, optometrists, ophthalmic dispensers,
veterinarians, pharmacists, nurses, licensed psychologists, physical
therapists or chiropractors, respectively, who are in responsible charge
of such report, diagnosis, prognosis or prescription.
(d) Each record, transcript, report and hearing report prepared by a
professional service limited liability company practicing certified
shorthand reporting shall bear the signature of one or more certified
shorthand reporters who are in responsible charge of such record,
transcript, report or hearing report.
(e) Each professional service limited liability company practicing
public accounting or certified public accounting shall maintain records
indicating the identity of each public accountant or certified public
accountant, respectively, who was responsible for each report or
statement that is issued, prepared or examined by such limited liability
company.
(f) Each opinion prepared by a professional service limited liability
company practicing law shall bear the signature of one or more attorneys
and counselors-at-law who are in responsible charge of such opinion.
(g) In addition to the requirements pursuant to subdivisions (b)
through (f) of this section, each document prepared by a professional
service limited liability company that under the rules, regulations,
laws or customs of the applicable profession is required to bear the
signature of an individual in responsible charge of such document, shall
be signed by one or more such individuals.
§ 1205. Professional relationships and liabilities. (a) Each member,
manager, employee or agent of a professional service limited liability
company shall be personally and fully liable and accountable for any
negligent or wrongful act or misconduct committed by him or her or by
any person under his or her direct supervision and control while
rendering professional services on behalf of such limited liability
company.
(b) Each shareholder, director, officer, employee, member, manager,
partner and agent of a professional service corporation, foreign
professional service corporation, professional service limited liability
company, foreign professional service limited liability company,
registered limited liability partnership, foreign limited liability
partnership or professional partnership that is a member, manager,
employee or agent of a professional service limited liability company
shall be personally and fully liable and accountable for any negligent
or wrongful act or misconduct committed by him or her or by any person
under his or her direct supervision and control while rendering
professional services in his or her capacity as a member, manager,
employee or agent of such professional service limited liability
company.
(c) The relationship of a professional to a professional service
limited liability company with which such professional is associated,
whether as member, manager, employee or agent, shall not modify or
diminish the jurisdiction over such professional of the licensing
authority and in the case of an attorney and counselor-at-law, or a
professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership engaged in the practice of law, the courts of
this state.
§ 1206. Purposes of formation. No professional service limited
liability company shall engage in any profession or professions other
than those set forth in its articles of organization. A professional
service limited liability company may only engage in a profession or
professions as to which one or more of its members is authorized by law
to render professional services in this state. In addition to engaging
in such profession or professions, a professional service limited
liability company may carry on, or conduct or transact any other
business or other activities as to which a limited liability company may
be formed under section two hundred one of this chapter. Notwithstanding
any other provision of this section, and subject to the next succeeding
sentence of this section, a professional service limited liability
company (i) authorized to practice law may only engage in another
profession or other business or activities or (ii) which is engaged in a
profession or other business or activities other than law may only
engage in the practice of law, to the extent not prohibited by any other
law of this state or any rule adopted by the appropriate appellate
division of the supreme court or the court of appeals. Any professional
service limited liability company may invest its funds in real estate,
mortgages, stocks, bonds or any other type of investments.
§ 1207. Membership of professional service limited liability
companies. (a) A member of a professional service limited liability
company shall be only:
(1) A professional, other than a foreign professional service
corporation, foreign professional service limited liability company or
foreign limited liability partnership, authorized by law to practice in
this state a profession that such limited liability company is
authorized to practice and who is or has been engaged in the practice of
such profession in such limited liability company or a predecessor
entity, or who will engage in the practice of such profession in such
limited liability company within thirty days of the date such
professional becomes a member;
(2) A professional, other than a foreign professional service
corporation, foreign professional service limited liability company or
foreign limited liability partnership, authorized by law to practice in
any foreign jurisdiction a profession that such limited liability
company is authorized to practice and who is or has been engaged in the
practice of such profession in such limited liability company or a
predecessor entity, or who will engage in the practice of such
profession in such limited liability company within thirty days of the
date such professional becomes a member; or
(3) A foreign professional service corporation, foreign professional
service limited liability company or foreign limited liability
partnership authorized by law to practice in this state or in any
foreign jurisdiction a profession that such limited liability company is
authorized to practice and who is or has been engaged in the practice of
such profession in such limited liability company or a predecessor
entity, or who will engage in the practice of such profession in such
limited liability company within thirty days of the date such
professional becomes a member.
(b) With respect to a professional service limited liability company
formed to provide medical services as such services are defined in
article 131 of the education law, each member of such limited liability
company must be licensed pursuant to article 131 of the education law to
practice medicine in this state. With respect to a professional service
limited liability company formed to provide dental services as such
services are defined in article 133 of the education law, each member of
such limited liability company must be licensed pursuant to article 133
of the education law to practice dentistry in this state. With respect
to a professional service limited liability company formed to provide
veterinary services as such services are defined in article 135 of the
education law, each member of such limited liability company must be
licensed pursuant to article 135 of the education law to practice
veterinary medicine in this state. With respect to a professional
service limited liability company formed to provide professional
engineering, land surveying, architectural, landscape architectural
and/or geological services as such services are defined in article 145,
article 147 and article 148 of the education law, each member of such
limited liability company must be licensed pursuant to article 145,
article 147 and/or article 148 of the education law to practice one or
more of such professions in this state. With respect to a professional
service limited liability company formed to provide public accountancy
services as such services are defined in article 149 of the education
law each member of such limited liability company whose principal place
of business is in this state and who provides public accountancy
services, must be licensed pursuant to article 149 of the education law
to practice public accountancy in this state. With respect to a
professional service limited liability company formed to provide
licensed clinical social work services as such services are defined in
article 154 of the education law, each member of such limited liability
company shall be licensed pursuant to article 154 of the education law
to practice licensed clinical social work in this state. With respect to
a professional service limited liability company formed to provide
creative arts therapy services as such services are defined in article
163 of the education law, each member of such limited liability company
must be licensed pursuant to article 163 of the education law to
practice creative arts therapy in this state. With respect to a
professional service limited liability company formed to provide
marriage and family therapy services as such services are defined in
article 163 of the education law, each member of such limited liability
company must be licensed pursuant to article 163 of the education law to
practice marriage and family therapy in this state. With respect to a
professional service limited liability company formed to provide mental
health counseling services as such services are defined in article 163
of the education law, each member of such limited liability company must
be licensed pursuant to article 163 of the education law to practice
mental health counseling in this state. With respect to a professional
service limited liability company formed to provide psychoanalysis
services as such services are defined in article 163 of the education
law, each member of such limited liability company must be licensed
pursuant to article 163 of the education law to practice psychoanalysis
in this state. With respect to a professional service limited liability
company formed to provide applied behavior analysis services as such
services are defined in article 167 of the education law, each member of
such limited liability company must be licensed or certified pursuant to
article 167 of the education law to practice applied behavior analysis
in this state. A professional service limited liability company formed
to lawfully engage in the practice of public accountancy as a firm, as
such practice is defined under article 149 of the education law shall be
required to show (1) that a simple majority of the ownership of the
firm, in terms of financial interests and voting rights held by the
firm's owners, belongs to individuals licensed to practice public
accountancy in some state, and (2) that all members of a limited
professional service limited liability company, whose principal place of
business is in this state, and who are engaged in the practice of public
accountancy in this state, hold a valid license issued under section
seventy-four hundred four of the education law. For purposes of this
subdivision, "financial interest" means capital stock, capital accounts,
capital contributions, capital interest, or interest in undistributed
earnings of a business entity. Although firms registered with the
education department may include non-licensee owners, a registered firm
and its owners must comply with rules promulgated by the state board of
regents. Notwithstanding the foregoing, a firm registered with the
education department may not have non-licensee owners if the firm's name
includes the words "certified public accountant," or "certified public
accountants," or the abbreviations "CPA" or "CPAs". Each non-licensee
owner of a firm that is registered under this section shall be (1) a
natural person who actively participates in the business of the firm or
its affiliated entities, or (2) an entity, including, but not limited
to, a partnership or professional corporation, provided each beneficial
owner of an equity interest in such entity is a natural person who
actively participates in the business conducted by the firm or its
affiliated entities. For purposes of this subdivision, "actively
participate" means to provide services to clients or to otherwise
individually take part in the day-to-day business or management of the
firm or an affiliated entity.
(c) No member of a professional service limited liability company
shall enter into a voting trust agreement, proxy or any other type of
agreement vesting in another person, other than another member of such
limited liability company or professional who would be eligible to
become a member of such limited liability company, the authority to
exercise voting power of any or all of the membership interests of such
limited liability company. All membership interests or proxies granted
or agreements made in violation of this section shall be void.
§ 1208. (Reserved)
§ 1209. Disqualification of members, managers and employees. If any
member, manager or employee of a professional service limited liability
company who has been rendering professional service to the public
becomes legally disqualified to practice his, her or its profession
within this state, he, she or it shall sever all employment with and
financial interests (other than interests as a creditor or vested rights
under a bona fide retirement program) in such limited liability company
forthwith or as otherwise provided in section twelve hundred ten of this
article. All provisions of law regulating the rendering of professional
services by a person elected or appointed to a public office shall be
applicable to a member, manager or employee of such limited liability
company in the same manner and to the same extent as if fully set forth
herein. Such legal disqualification to practice such profession within
this state shall be deemed to constitute an irrevocable offer by the
disqualified member to sell his, her or its membership interest to the
professional service limited liability company, pursuant to the
provisions of section twelve hundred ten of this article or of the
articles of organization or operating agreement, whichever is
applicable. Compliance with the terms of such offer shall be
specifically enforceable in the courts of this state. A professional
service limited liability company's failure to enforce compliance with
this provision shall constitute a ground for its dissolution.
§ 1210. Death, disqualification or dissolution of members. (a) A
professional service limited liability company shall purchase or redeem
the membership interest of a member in case of such member's death or
disqualification pursuant to the provisions of section twelve hundred
nine of this article or in the case of a member that is a professional
service corporation, foreign professional service corporation,
professional service limited liability company, foreign professional
service limited liability company, registered limited liability
partnership, foreign limited liability partnership or professional
partnership, dissolution or disqualification of such professional
service corporation, foreign professional service corporation,
professional service limited liability company, foreign professional
service limited liability company, registered limited liability
partnership, foreign limited liability partnership or professional
partnership (in the case of registered limited liability partnership,
foreign limited liability partnership and professional partnership,
other than a dissolution followed by a reconstitution where at least a
majority of the total interests in the current profits of a successor
partnership are held by partners of the predecessor partnership that was
a registered limited liability partnership, foreign limited liability
partnership or professional partnership who were partners of such
predecessor partnership immediately prior to the dissolution of such
predecessor partnership) or the death, dissolution or disqualification
of all of its shareholders, members or partners, within six months after
the appointment of the executor or administrator or other legal
representative of the estate of such deceased member, or within six
months after such disqualification or dissolution, at the book value of
such membership interest as of the end of the month immediately
preceding the death, disqualification or dissolution of the member as
determined from the records of such limited liability company in
accordance with its regular method of accounting. The operating
agreement of such limited liability company may modify this section by
providing for a shorter period of purchase or redemption, or an
alternate method of determining the price to be paid for the membership
interest, or both. If such limited liability company shall fail to
purchase or redeem such membership interest within the required period,
a successful plaintiff in an action to recover the purchase price of
such membership interest shall also be awarded reasonable attorneys'
fees and costs. Nothing herein contained shall prevent such limited
liability company from paying pension benefits or other deferred
compensation to or on behalf of a former or deceased member, manager or
employee thereof, or where such member, manager or employee is a
professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership, on behalf of a former or deceased shareholder,
officer, director, member, manager, partner, or employee of such
professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership, as otherwise permitted by law. The provisions
of this section shall not be deemed to require the purchase of the
membership interest of a disqualified member where the period of
disqualification is for less than six months and the member again
becomes eligible to practice his or her profession within six months
from the date of disqualification (or, in the case of a disqualified
member that is a professional service corporation, foreign professional
service corporation, professional service limited liability company,
foreign professional service limited liability company, registered
limited liability partnership, foreign limited liability partnership or
professional partnership, where the period of disqualification of such
professional service corporation, foreign professional corporation,
professional service limited liability company, foreign professional
service limited liability company, registered limited liability
partnership, foreign limited liability partnership or professional
partnership or all shareholders, members or partners of such
professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership is for less than six months and such
professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership or each such shareholder, member or partner
becomes eligible to practice his or her profession within six months
from the date of disqualification).
(b) Notwithstanding the provisions of subdivision (a) of this section,
the professional service limited liability company shall not be required
to purchase or redeem the membership interest of a deceased or
disqualified or dissolved member if such membership interest, within the
time limit prescribed by subdivision (a) of this section, is sold or
transferred to another professional pursuant to the provisions of
section twelve hundred eleven of this article.
§ 1211. Transfer of a membership interest. (a) No member of a
professional service limited liability company may sell or assign his,
her or its membership interest in such limited liability company except
to another professional eligible to become a member of such limited
liability company or except in trust to another professional who would
be eligible to become a member if such professional were employed by
such limited liability company.
(b) Nothing contained in subdivision (a) of this section shall be
construed to prohibit the assignment of a membership interest by
operation of law or by court decree. An assignee of a membership
interest by operation of law or court decree shall have the rights of an
assignee of a membership interest set forth in section six hundred three
of this chapter. Such assignee shall automatically become a member of
the professional service limited liability company if such assignee
would be eligible to be a member of such limited liability company and,
a majority in interest of the members shall fail to redeem the
membership interest so transferred, pursuant to section twelve hundred
ten of this article, within sixty days of receiving written notice of
such transfer.
(c) Any sale or transfer, except by operation of law or court decree
or except for a professional service limited liability company having
only one member, may be made only after the same shall have been
approved by the vote or written consent of such proportion, not less
than a majority in interest of the members, exclusive of the interest of
the member proposing to sell or transfer such membership interest, as
may be provided in the operating agreement of such professional service
limited liability company. The voting interest held by the member
proposing to sell or transfer his, her or its membership interest may
not be voted or counted for any purpose, unless all the members consent
that such interests be voted or counted. The professional service
limited liability company may provide, in lieu of or in addition to the
foregoing provisions, for the alienation of membership interests and may
require the redemption or purchase of such membership interests by such
limited liability company at prices and in a manner specifically set
forth therein. The existence of the restrictions on the sale or transfer
of a membership interest, as contained in this article and, if
applicable, in the operating agreement, shall be noted conspicuously on
the face or back of every certificate representing a membership interest
issued by a professional service limited liability company. Any sale or
transfer in violation of such restrictions shall be void.
§ 1212. Limited liability company name. (a) Notwithstanding any other
provision of law, the name of a professional service limited liability
company may contain any word that, at the time of formation, could be
used in the name of a partnership or professional service corporation
practicing a profession that such limited liability company is
authorized to practice and may not contain any word that could not be
used by such a partnership or professional service corporation;
provided, however, the name of a professional service limited liability
company may not contain the name of a deceased person unless:
(1) such person's name was part of the name of such limited liability
company at the time of such person's death; or
(2) such person's name was part of the name of an existing partnership
or professional service corporation and at least two-thirds of such
partnership's partners or corporation's shareholders, as the case may
be, become members of such limited liability company.
(b) A professional service limited liability company name shall end
with the words "Professional Limited Liability Company" or "Limited
Liability Company" or the abbreviation "P.L.L.C.", "PLLC", "L.L.C." or
"LLC". The provisions of subdivision (a) of section two hundred four of
this chapter shall not apply to a professional service limited liability
company.
§ 1213. Limited liability company act applicable. This chapter, except
article eight and article thirteen, shall be applicable to a
professional service limited liability company except to the extent that
the provisions thereof conflict with this article. A professional
service limited liability company may consolidate or merge with another
limited liability company formed under this article, a foreign
professional service limited liability company authorized to do business
under article thirteen of this chapter or other business entity, only if
all of the professions practiced by such limited liability company,
foreign limited liability company or other business entity could be
practiced by a single limited liability company organized under this
article.
§ 1214. (Reserved)
§ 1215. Regulation of professions. This article shall not repeal,
modify or restrict any provision of the education law or the judiciary
law or any rules or regulations adopted thereunder regulating the
professions referred to in the education law or the judiciary law except
to the extent in conflict herewith.
§ 1216. Mergers and consolidations. Notwithstanding any inconsistent
provision of this article, a professional service limited liability
company, pursuant to the provisions of article ten of this chapter, may
be merged or consolidated with another limited liability company formed
pursuant to the provisions of this chapter, a foreign professional
service limited liability company authorized to do business under
article thirteen of this chapter or other business entity formed or
recognized under the laws of this state or any other state, provided
that the limited liability company or other business entity that
survives or that is formed pursuant thereto is a professional service
limited liability company, a foreign professional service limited
liability company authorized to do business under article thirteen of
this chapter or other business entity practicing the same profession or
professions in this state or the state of its formation. The
restrictions on the issuance, transfer or sale of membership interests
of a professional service limited liability company other than the
requirements of the first two sentences of subdivision (c) of section
twelve hundred eleven of this chapter, shall be suspended for a period
not exceeding thirty days with respect to any issuance, transfer or sale
of membership interests made pursuant to such merger or consolidation,
provided that (a) no person or business entity who would not be eligible
to be a member in the absence of this section shall vote or receive any
distribution from such limited liability company; (b) after such merger
or consolidation, any professional service limited liability company
that survives or that is created thereby shall be subject to all the
provisions of this article; and (c) membership interests thereafter may
be held only by persons or business entities who are eligible to be a
member of such professional service limited liability company. Nothing
herein contained shall be construed as permitting the practice of a
profession in this state by a limited liability company that is not
formed pursuant to the provisions of this article or authorized to do
business in the state pursuant to the provisions of article thirteen of
this chapter.
§ 1301. Definitions. As used in this article, unless the context
otherwise requires, the term:
(a) "Foreign professional service limited liability company" means a
professional service limited liability company, whether or not
denominated as such, organized under the laws of a jurisdiction other
than this state, (i) each of whose members and managers, if any, is a
professional authorized by law to render a professional service within
this state and who is or has been engaged in the practice of such
profession in such professional service limited liability company or a
predecessor entity, or will engage in the practice of such profession in
the professional service limited liability company within thirty days of
the date such professional becomes a member, or each of whose members
and managers, if any, is a professional at least one of such members is
authorized by law to render a professional service within this state and
who is or has been engaged in the practice of such profession in such
professional service limited liability company or a predecessor entity,
or will engage in the practice of such profession in the professional
service limited liability company within thirty days of the date such
professional becomes a member, or (ii) authorized by, or holding a
license, certificate, registration or permit issued by the licensing
authority pursuant to, the education law to render a professional
service within this state; except that all members and managers, if any,
of a foreign professional service limited liability company that
provides health services in this state shall be licensed in this state.
With respect to a foreign professional service limited liability company
which provides veterinary services as such services are defined in
article 135 of the education law, each member of such foreign
professional service limited liability company shall be licensed
pursuant to article 135 of the education law to practice veterinary
medicine. With respect to a foreign professional service limited
liability company which provides medical services as such services are
defined in article 131 of the education law, each member of such foreign
professional service limited liability company must be licensed pursuant
to article 131 of the education law to practice medicine in this state.
With respect to a foreign professional service limited liability company
which provides dental services as such services are defined in article
133 of the education law, each member of such foreign professional
service limited liability company must be licensed pursuant to article
133 of the education law to practice dentistry in this state. With
respect to a foreign professional service limited liability company
which provides professional engineering, land surveying, geologic,
architectural and/or landscape architectural services as such services
are defined in article 145, article 147 and article 148 of the education
law, each member of such foreign professional service limited liability
company must be licensed pursuant to article 145, article 147 and/or
article 148 of the education law to practice one or more of such
professions in this state. With respect to a foreign professional
service limited liability company which provides public accountancy
services as such services are defined in article 149 of the education
law, each member of such foreign professional service limited liability
company whose principal place of business is in this state and who
provides public accountancy services, shall be licensed pursuant to
article 149 of the education law to practice public accountancy in this
state. With respect to a foreign professional service limited liability
company which provides licensed clinical social work services as such
services are defined in article 154 of the education law, each member of
such foreign professional service limited liability company shall be
licensed pursuant to article 154 of the education law to practice
clinical social work in this state. With respect to a foreign
professional service limited liability company which provides creative
arts therapy services as such services are defined in article 163 of the
education law, each member of such foreign professional service limited
liability company must be licensed pursuant to article 163 of the
education law to practice creative arts therapy in this state. With
respect to a foreign professional service limited liability company
which provides marriage and family therapy services as such services are
defined in article 163 of the education law, each member of such foreign
professional service limited liability company must be licensed pursuant
to article 163 of the education law to practice marriage and family
therapy in this state. With respect to a foreign professional service
limited liability company which provides mental health counseling
services as such services are defined in article 163 of the education
law, each member of such foreign professional service limited liability
company must be licensed pursuant to article 163 of the education law to
practice mental health counseling in this state. With respect to a
foreign professional service limited liability company which provides
psychoanalysis services as such services are defined in article 163 of
the education law, each member of such foreign professional service
limited liability company must be licensed pursuant to article 163 of
the education law to practice psychoanalysis in this state. With respect
to a foreign professional service limited liability company which
provides applied behavior analysis services as such services are defined
in article 167 of the education law, each member of such foreign
professional service limited liability company must be licensed or
certified pursuant to article 167 of the education law to practice
applied behavior analysis in this state. A foreign professional service
limited liability company formed to lawfully engage in the practice of
public accountancy as a firm, as such practice is defined under article
149 of the education law shall be required to show (1) that a simple
majority of the ownership of the firm, in terms of financial interests
and voting rights held by the firm's owners, belongs to individuals
licensed to practice public accountancy in some state, and (2) that all
members of a foreign limited professional service limited liability
company, whose principal place of business is in this state, and who are
engaged in the practice of public accountancy in this state, hold a
valid license issued under section seventy-four hundred four of the
education law. For purposes of this subdivision, "financial interest"
means capital stock, capital accounts, capital contributions, capital
interest, or interest in undistributed earnings of a business entity.
Although firms registered with the education department may include
non-licensee owners, a registered firm and its owners must comply with
rules promulgated by the state board of regents. Notwithstanding the
foregoing, a firm registered with the education department may not have
non-licensee owners if the firm's name includes the words "certified
public accountant," or "certified public accountants," or the
abbreviations "CPA" or "CPAs". Each non-licensee owner of a firm that is
registered under this section shall be (1) a natural person who actively
participates in the business of the firm or its affiliated entities, or
(2) an entity, including, but not limited to, a partnership or
professional corporation, provided each beneficial owner of an equity
interest in such entity is a natural person who actively participates in
the business conducted by the firm or its affiliated entities. For
purposes of this subdivision, "actively participate" means to provide
services to clients or to otherwise individually take part in the
day-to-day business or management of the firm or an affiliated entity.
(b) "Licensing authority" means the regents of the university of the
state of New York or the state education department, as the case may be,
in the case of all professions licensed under title eight of the
education law, and the appropriate appellate division of the supreme
court in the case of the profession of law.
(c) "Profession" includes any practice as an attorney and
counselor-at-law, or as a licensed physician, and those professions
designated in title eight of the education law.
(d) "Professional" means an individual duly authorized to practice a
profession, a professional service corporation, a professional service
limited liability company, a foreign professional service limited
liability company, a registered limited liability partnership, a foreign
limited liability partnership, a foreign professional service
corporation or a professional partnership.
(e) "Professional service" means any type of service to the public
that may be lawfully rendered by a member of a profession within the
purview of his or her profession.
(f) "Professional partnership" means (1) a partnership without limited
partners each of whose partners is a professional authorized by law to
render a professional service within this state, (2) a partnership
without limited partners each of whose partners is a professional, at
least one of whom is authorized by law to render a professional service
within this state or (3) a partnership without limited partners
authorized by, or holding a license, certificate, registration or permit
issued by the licensing authority pursuant to the education law to
render a professional service within this state; except that all
partners of a professional partnership that provides medical services in
this state must be licensed pursuant to article 131 of the education law
to practice medicine in this state and all partners of a professional
partnership that provides dental services in this state must be licensed
pursuant to article 133 of the education law to practice dentistry in
this state; except that all partners of a professional partnership that
provides veterinary services in this state must be licensed pursuant to
article 135 of the education law to practice veterinary medicine in this
state; and further except that all partners of a professional
partnership that provides professional engineering, land surveying,
geologic, architectural, and/or landscape architectural services in this
state must be licensed pursuant to article 145, article 147 and/or
article 148 of the education law to practice one or more of such
professions.
(g) "Professional service corporation" means (i) a corporation
organized under article fifteen of the business corporation law and (ii)
any other corporation organized under the business corporation law or
any predecessor statute, which is authorized by, or holds a license,
certificate, registration or permit issued by, the licensing authority
pursuant to the education law to render professional services within
this state.
(h) "Professional service limited liability company" means a limited
liability company organized under article twelve of this chapter.
(i) "Foreign professional service corporation" has the meaning given
to it in paragraph (d) of section fifteen hundred twenty-five of the
business corporation law.
§ 1302. Rendering of professional service. (a) No foreign professional
service limited liability company may render a professional service in
this state except through individuals authorized by law to render such
professional service as individuals in this state.
(b) Each final plan and report made or issued by a foreign
professional service limited liability company practicing professional
engineering, geology, architecture, landscape architecture or land
surveying shall bear the name and seal of one or more professional
engineers, professional geologists, architects, landscape architects, or
land surveyors, respectively, who are in responsible charge of such plan
or report.
(c) Each report, diagnosis, prognosis and prescription made or issued
by a foreign professional service limited liability company practicing
medicine, dentistry, podiatry, optometry, ophthalmic dispensing,
veterinary medicine, pharmacy, nursing, psychology, physical therapy or
chiropractic shall bear the signature of one or more physicians,
dentists, podiatrists, optometrists, ophthalmic dispensers,
veterinarians, pharmacists, nurses, licensed psychologists, physical
therapists or chiropractors, respectively, who are in responsible charge
of such report, diagnosis, prognosis or prescription.
(d) Each record, transcript, report and hearing report prepared by a
foreign professional service limited liability company practicing
certified shorthand reporting shall bear the signature of one or more
certified shorthand reporters who are in responsible charge of such
record, transcript, report or hearing report.
(e) Each report and statement prepared by a foreign professional
service limited liability company practicing public accounting or
certified public accounting shall bear the signature of one or more
public accountants or certified public accountants, respectively, who
are in responsible charge of such report or statement.
(f) Each opinion prepared by a foreign professional service limited
liability company practicing law shall bear the signature of one or more
attorneys and counselors-at-law who are in responsible charge of such
opinion.
(g) In addition to the requirements in subdivisions (b) through (f) of
this section, each document prepared by a foreign professional service
limited liability company that under the rules, regulations, laws or
customs of the applicable profession is required to bear the signature
of an individual in responsible charge of such document, shall be signed
by one or more such individuals licensed to practice in this state.
§ 1303. Professional relationships and liabilities. (a) Each member,
manager, employee or agent of a foreign professional service limited
liability company who performs professional services in this state on
behalf of such limited liability company shall be personally and fully
liable and accountable for any negligent or wrongful act or misconduct
committed by him or her or by any person under his or her direct
supervision and control while rendering such professional services in
this state and shall bear professional responsibility for compliance by
such limited liability company with all laws, rules and regulations
governing the practice of a profession in this state.
(b) Each shareholder, director, officer, employee, member, manager,
partner or agent of a professional service corporation, foreign
professional service corporation, professional service limited liability
company, foreign professional service limited liability company,
registered limited liability partnership, foreign limited liability
partnership or professional partnership that is a member, manager,
employee or agent of a foreign professional service limited liability
company who performs professional services in this state on behalf of
such foreign professional service limited liability company shall be
personally and fully liable and accountable for any negligent or
wrongful act or misconduct committed by him or her or by any person
under his or her direct supervision and control while rendering
professional services in this state in his or her capacity as a member,
manager, employee or agent of such foreign professional service limited
liability company and shall bear professional responsibility for
compliance by such limited liability company with all laws, rules and
regulations governing the practice of the profession in this state.
(c) The relationship of a professional to a foreign professional
service limited liability company with which such professional is
associated, whether as a member, manager, employee or agent, shall not
modify or diminish the jurisdiction over such professional of the
licensing authority and in the case of an attorney and counselor-at-law
or a professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership, engaged in the practice of law, the courts of
this state.
§ 1304. Foreign professional service limited liability company. No
foreign professional service limited liability company shall engage in
any profession or carry on, or conduct or transact any other business or
activities in this state other than the rendering of the professional
services or the carrying on, or conducting or transacting of any other
business or activities for which it is formed and is authorized to do
business in this state; provided that such limited liability company may
invest its funds in real estate, mortgages, stocks, bonds or any other
type of investments; provided, further, that a foreign professional
service limited liability company (i) authorized to practice law may
only engage in another profession or other business or activities in
this state or (ii) which is engaged in a profession or other business or
activities other than law, may only engage in the practice of law in
this state, to the extent not prohibited by any other law of this state
or any rule adopted by the appropriate appellate division of the supreme
court or the court of appeals.
§ 1305. Limited liability company act applicable. Except for the
provisions of sections eight hundred two and eight hundred nine of this
chapter, this chapter shall be applicable to a foreign professional
service limited liability company to the extent that the provisions
thereof are not in conflict with the provisions of this article. A
foreign professional service limited liability company may practice in
this state or may consolidate or merge with another limited liability
company or other business entity, only if all of the professions
practiced by such limited liability company or other business entity
could be practiced by a single professional service limited liability
company organized in this state; and, further, only if such foreign
professional service limited liability company is domiciled in a state
the laws of which, at the time of application by such limited liability
company under section thirteen hundred six of this article, contain a
reciprocal provision under which professional service limited liability
companies domiciled in this state may similarly apply for the privilege
of doing business in any such state or territory.
§ 1306. Filing requirements. (a) A foreign professional service
limited liability company may apply for authority to do business in this
state. An application entitled "Application for authority of... (name
of limited liability company) under section thirteen hundred six of the
Limited Liability Company Law," shall be signed by an authorized person
for the limited liability company and delivered to the department of
state. It shall set forth:
(1) the name of the foreign professional service limited liability
company. If the name does not end with the words "Professional Limited
Liability Company" or "Limited Liability Company" or the abbreviation
"P.L.L.C.", "PLLC", "L.L.C." or "LLC", it shall in addition to the
foregoing set forth the name to be used in this state, ending with the
words "Professional Limited Liability Company" or "Limited Liability
Company" or the abbreviation "P.L.L.C.", "PLLC", "L.L.C." or "LLC";
(2) the jurisdiction and date of its formation;
(3) a statement of the profession or professions to be practiced in
this state and a statement that the foreign professional service limited
liability company is authorized to practice such profession or
professions in the jurisdiction of its formation;
(4) the name, address and, where applicable, license number of each
professional within the foreign professional service limited liability
company who is licensed to practice the profession or professions in
this state;
(5) the city, incorporated village or town and the county within this
state in which its office is to be located;
(6) a designation of the secretary of state as its agent upon whom
process against it may be served and the post office address within or
without this state to which the secretary of state shall mail a copy of
any process against it served upon him or her. The limited liability
company may include an email address to which the secretary of state
shall email a notice of the fact that process against it has been
electronically served upon him or her; and
(7) if it is to have a registered agent, his or her name and address
within this state and a statement that the registered agent is to be its
agent upon whom process against it may be served.
(b) Attached to the application for authority shall be:
(1) a certificate by an authorized officer of the jurisdiction of its
formation that the foreign professional service limited liability
company is an existing limited liability company;
(2) a certificate or certificates issued by the licensing authority
that each professional within such limited liability company who is an
individual and intending to practice the profession or professions in
this state is licensed to practice said profession or professions in
this state and for each such professional that is a professional service
corporation, foreign professional service corporation, professional
service limited liability company, foreign professional service limited
liability company, registered limited liability partnership, foreign
limited liability partnership or professional partnership, (A) such
certificate or certificates issued by the licensing authority shall
certify either (i) that each such professional service corporation,
foreign professional service corporation, professional service limited
liability company, foreign professional service limited liability
company, registered limited liability partnership, foreign limited
liability partnership or professional partnership intending to practice
a profession in the state is authorized by law to practice in the state
the profession that such foreign limited liability company intends to
practice in the state and, if applicable, that each shareholder, member
or partner of such proposed member or manager is authorized by law to
render the professional service that such foreign limited liability
company intends to practice in this state or (ii) that one or more of
such professional service corporation, foreign professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited
liability partnership, foreign limited liability partnership or
professional partnership, intending to practice a profession in this
state is authorized by law to practice in this state the profession that
such foreign limited liability company intends to practice and that one
or more of the shareholders, members or partners of such proposed
members or managers are authorized to practice within this state each
profession that such foreign limited liability company will be
authorized to practice within this state and (B) there shall be attached
to the application for authority a certificate by an authorized officer
of the jurisdiction of its formation that the professional service
corporation, foreign professional service corporation, professional
service limited liability company, foreign professional service limited
liability company, registered limited liability partnership or foreign
limited liability partnership is validly existing and, in the case of a
foreign professional service corporation, foreign professional service
limited liability company or foreign limited liability partnership, a
certificate from the secretary of state that such foreign professional
service corporation, foreign professional service limited liability
company or foreign limited liability partnership is authorized to do
business under article fifteen-A of the business corporation law, this
article or article eight-B of the partnership law, as the case may be.
In order to obtain said certificate or certificates, a copy of the
articles of organization shall be furnished to the licensing authority;
and
(3) a certificate or certificates, issued by the licensing authority
in the case of a foreign professional service limited liability company
providing health services, stating that each member or manager of the
foreign professional service limited liability company is licensed to
practice said profession in this state.
(c) The fee for filing the application for authority shall be two
hundred dollars, payable to the department of state, and the fee for a
certificate of authority issued by the state education department shall
be fifty dollars.
(d) (i) Within one hundred twenty days after the filing of the
application for authority with the department of state, a copy of the
same or a notice containing the substance thereof shall be published
once in each week for six successive weeks, in two newspapers of the
county within this state in which the office of the foreign professional
service limited liability company is located, one newspaper to be
printed weekly and one newspaper to be printed daily, to be designated
by the county clerk. When such county is located within a city with a
population of one million or more, such designation shall be as though
the copy or notice were a notice or advertisement of judicial
proceedings. Proof of the publication required by this paragraph,
consisting of the certificate of publication of the foreign professional
service limited liability company with the affidavits of publication of
such newspapers annexed thereto, must be filed with the department of
state. Notwithstanding any other provision of law, if the office of the
foreign professional service limited liability company is located in a
county wherein a weekly or daily newspaper of the county, or both, has
not been so designated by the county clerk, then the publication herein
required shall be made in a weekly or daily newspaper of any county, or
both, as the case may be, which is contiguous to, such county, provided
that any such newspaper meets all the other requirements of this
paragraph. A copy or notice published in a newspaper other than the
newspaper or newspapers designated by the county clerk shall not be
deemed to be one of the publications required by this paragraph. The
notice shall include: (1) the name of the foreign professional service
limited liability company; (2) the date of filing of the application for
authority with the department of state; (3) the jurisdiction and date of
its organization; (4) the county within this state, in which the office
of the foreign professional service limited liability company is
located; (4-a) the street address of the principal business location, if
any; (5) a statement that the secretary of state has been designated as
agent of the foreign professional service limited liability company upon
whom process against it may be served and the post office address within
or without this state to which the secretary of state shall mail a copy
of any process against it served upon him or her; (6) if the foreign
professional service limited liability company is to have a registered
agent, his or her name and address within this state and a statement
that the registered agent is to be the agent of the foreign professional
service limited liability company upon whom process against it may be
served; (7) the address of the office required to be maintained in the
jurisdiction of its organization by the laws of that jurisdiction or, if
not so required, of the principal office of the foreign professional
service limited liability company; (8) the name and address of the
authorized officer in its jurisdiction of organization where a copy of
its certificate of organization is filed or, if no public filing of its
certificate of organization is required by the law of its jurisdiction
of organization, a statement that the foreign professional service
limited liability company shall provide, on request, a copy thereof with
all amendments thereto (if such documents are in a foreign language, a
translation thereof under oath of the translator shall be attached
thereto), and the name and post office address of the person responsible
for providing such copies; and (9) the character or purpose of the
business of such foreign professional service limited liability company.
Where, at any time after completion of the first of the six weekly
publications required by this paragraph and prior to the completion of
the sixth such weekly publication, there is a change in any of the
information contained in the copy or notice as published, the foreign
professional service limited liability company may complete the
remaining publications of the original copy or notice, and the foreign
professional service limited liability company shall not be required to
publish any further or amended copy or notice. Where, at any time after
completion of the six weekly publications required by this paragraph,
there is a change to any of the information contained in the copy or
notice as published, no further or amended publication or republication
shall be required to be made. If within one hundred twenty days after
the filing of its application for authority with the department of
state, proof of such publication, consisting of the certificate of
publication of the foreign professional service limited liability
company with the affidavits of publication of the newspapers annexed
thereto has not been filed with the department of state, the authority
of such foreign professional service limited liability company to carry
on, conduct or transact any business in this state shall be suspended,
effective as of the expiration of such one hundred twenty day period.
The failure of a foreign professional service limited liability company
to cause such copy or notice to be published and such certificate of
publication and affidavits of publication to be filed with the
department of state within such one hundred twenty day period or the
suspension of such foreign professional service limited liability
company's authority to carry on, conduct or transact business in this
state pursuant to this paragraph shall not limit or impair the validity
of any contract or act of such foreign professional service limited
liability company, or any right or remedy of any other party under or by
virtue of any contract, act or omission of such foreign professional
service limited liability company, or the right of any other party to
maintain any action or special proceeding on any such contract, act or
omission, or right of such foreign professional service limited
liability company to defend any action or special proceeding in this
state, or result in any member, manager or agent of such foreign
professional service limited liability company becoming liable for the
contractual obligations or other liabilities of the foreign professional
service limited liability company. If, at any time following the
suspension of a foreign professional service limited liability company's
authority to carry on, conduct or transact business in this state
pursuant to this paragraph, such foreign professional service limited
liability company shall cause proof of publication in substantial
compliance with the provisions (other than the one hundred twenty day
period) of this paragraph, consisting of the certificate of publication
of the foreign professional service limited liability company with the
affidavits of publication of the newspapers annexed thereto, to be filed
with the department of state, such suspension of such foreign
professional service limited liability company's authority to carry on,
conduct or transact business shall be annulled.
(ii)(1) A foreign professional service limited liability company which
was formed and filed its application for authority with the department
of state prior to the effective date of this paragraph and complied with
the publication and filing requirements of this subdivision as in effect
prior to such effective date shall not be required to make any
publication or republication or any filing under paragraph (i) of this
subdivision, and shall not be subject to suspension pursuant to this
subdivision.
(2) Within twelve months after the effective date of this paragraph, a
foreign professional service limited liability company which was formed
and filed its application for authority with the department of state
prior to such effective date and which did not comply with the
publication and filing requirements of this subdivision as in effect
prior to such effective date shall publish a copy of its application for
authority or a notice containing the substance thereof in the manner
required (other than the one hundred twenty day period) by this
subdivision as in effect prior to such effective date and file proof of
such publication, consisting of the certificate of publication of the
foreign professional service limited liability company with the
affidavits of publication of the newspapers annexed thereto, with the
department of state.
(3) If a foreign professional service limited liability company that
is subject to the provisions of subparagraph two of this paragraph fails
to file the required proof of publication with the department of state
within twelve months after the effective date of this paragraph, its
authority to carry on, conduct or transact any business in this state
shall be suspended, effective as of the expiration of such twelve month
period.
(4) The failure of a foreign professional service limited liability
company that is subject to the provisions of subparagraph two of this
paragraph to fully comply with the provisions of said subparagraph two
of this paragraph or the suspension of such foreign professional service
limited liability company's authority to carry on, conduct or transact
any business in this state pursuant to subparagraph three of this
paragraph shall not impair or limit the validity of any contract or act
of such foreign professional service limited liability company, or any
right or remedy of any other party under or by virtue of any contract,
act or omission of such foreign professional service limited liability
company, or the right of any other party to maintain any action or
special proceeding on any such contract, act or omission, or right of
such foreign professional service limited liability company to defend
any action or special proceeding in this state, or result in any member,
manager or agent of such foreign professional service limited liability
company becoming liable for the contractual obligations or other
liabilities of the foreign professional service limited liability
company.
(5) If, at any time following the suspension of a foreign professional
service limited liability company's authority to carry on, conduct or
transact business in this state, pursuant to subparagraph three of this
paragraph, such foreign professional service limited liability company
shall cause proof of publication in substantial compliance with the
provisions (other than the one hundred twenty day period) of paragraph
(i) of this subdivision, consisting of the certificate of publication of
the foreign professional service limited liability company with the
affidavits of publication of the newspapers annexed thereto, to be filed
with the department of state, such suspension of such foreign
professional service limited liability company's authority to carry on,
conduct or transact business shall be annulled.
(6) For the purposes of this paragraph, a foreign professional service
limited liability company which was formed and filed its application for
authority with the department of state prior to the effective date of
this paragraph shall be deemed to have complied with the publication and
filing requirements of this subdivision as in effect prior to such
effective date if (i) the foreign professional service limited liability
company was formed and filed its application for authority with the
department of state on or after January first, nineteen hundred
ninety-nine and prior to such effective date and the foreign
professional service limited liability company filed at least one
affidavit of the printer or publisher of a newspaper with the department
of state at any time prior to such effective date, or (ii) the foreign
professional service limited liability company was formed and filed its
application for authority with the department of state prior to January
first, nineteen hundred ninety-nine, without regard to whether the
foreign professional service limited liability company did or did not
file any affidavit of the printer or publisher of a newspaper with the
secretary of state.
(iii) The information in a notice published pursuant to this
subdivision shall be presumed to be in compliance with and satisfaction
of the requirements of this subdivision.
§ 1307. (Reserved)
§ 1308. Regulation of professions. (a) This article shall not repeal,
modify or restrict any provision of the education law or the judiciary
law or any rules or regulations adopted thereunder regulating the
professions referred to in the education law or the judiciary law except
to the extent in conflict herewith.
(b) A foreign professional service limited liability company, other
than a foreign professional service limited liability company authorized
to practice law, shall be under the supervision of the regents of the
university of the state of New York and be subject to disciplinary
proceedings and penalties, and its authority to do business shall be
subject to suspension, revocation or annulment for cause, in the same
manner and to the same extent as is provided with respect to individuals
and their licenses, certificates and registrations in title eight of the
education law relating to the applicable profession. Notwithstanding
the provisions of this subdivision, a foreign professional service
limited liability company authorized to practice medicine shall be
subject to the pre-hearing procedures and hearing procedures as are
provided with respect to individual physicians and their licenses in
Title II-A of article two of the public health law.
(c) A foreign professional service limited liability company
authorized to practice law shall be subject to the regulation and
control of, and its authority to do business shall be subject to
suspension, revocation or annulment for cause by, the appellate division
of the supreme court and the court of appeals in the same manner and to
the same extent provided in the judiciary law with respect to individual
attorneys and counselors-at-law. Such limited liability company need not
qualify for any certification under section four hundred sixty-four of
the judiciary law, take an oath of office under section four hundred
sixty-six of the judiciary law or register under section four hundred
sixty-seven of the judiciary law.
§ 1309. Licensing of individuals. No member, manager or employee of a
foreign professional service limited liability company who is an
individual shall practice his or her profession in this state unless
such individual is duly licensed to practice such profession in this
state.
§ 1401. Severability. If any provision of this chapter or application
thereof to any person or circumstances is held invalid, such invalidity
shall not affect other provisions or applications of this chapter that
can be given effect without the invalid provision or application, and to
this end the provisions of this chapter are declared severable.
§ 1402. Statutory construction; references. (a) Unless otherwise
stated, all references in this chapter to articles or sections refer to
the articles or sections of this chapter, and all references in any
section of this chapter to a lettered or numbered subdivision refer to
the subdivision so lettered or numbered in such section.
(b) Headings to sections are supplied in this chapter for the purpose
of convenient reference and do not constitute part of the law.
(c) As used in this chapter all pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
§ 1403. Effective date. This chapter shall take effect on the
ninetieth day after it shall have become a law.