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.
Section 1. Short title. This chapter shall be known as the
"partnership law."
§ 2. General definitions. As used in this chapter "court" includes
every court and judge having jurisdiction in the case;
"Business" includes every trade, occupation, or profession;
"Person" includes individuals, partnerships, corporations, and other
associations;
"Bankrupt" includes bankrupt under the federal bankruptcy act or
insolvent under any state insolvent act;
"Conveyance" includes every assignment, lease, mortgage, or
encumbrance;
"Real property" includes land and any interest or estate in land.
"Foreign professional service corporation" has the meaning given to it
in subdivision (d) of section fifteen hundred twenty-five of the
business corporation law.
"Foreign professional service limited liability company" has the
meaning given to it in subdivision (a) of section thirteen hundred one
of the limited liability company law.
"Foreign limited liability partnership" means (i) any partnership
without limited partners operating under an agreement governed by the
laws of any jurisdiction, other than this state, each of whose partners
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 partnership or a predecessor entity, or will engage
in the practice of such profession in the foreign limited liability
partnership within thirty days of the date of the effectiveness of the
notice provided for in subdivision (a) of section 121-1502 of this
chapter or each of whose partners is a professional, at least one of
whom 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 partnership or a predecessor entity, or will engage in the
practice of such profession in the foreign limited liability partnership
within thirty days of the date of the effectiveness of the notice
provided for in subdivision (a) of section 121-1502 of this chapter,
(ii) any partnership without limited partners operating under an
agreement governed by the laws of any jurisdiction, other than this
state, 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, which renders or
intends to render professional services within this state and which is
denominated as a registered limited liability partnership or limited
liability partnership under such laws, regardless of any difference
between such laws and the laws of this state, or (iii) a foreign related
limited liability partnership; except that all partners of a foreign
limited liability partnership that provides health, professional
engineering, land surveying, geologic, architectural and/or landscape
architectural services in this state shall be licensed in this state.
"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.
"New York registered foreign limited liability partnership" means a
foreign limited liability partnership which has filed a notice pursuant
to subdivision (a) of section 121-1502 of this chapter that has not been
withdrawn or revoked and which complies with subdivision (1) of section
121-1502 of this chapter.
"Profession" includes any practice as an attorney and
counsellor-at-law or as a licensed physician, and those professions
designated in title eight of the education law.
"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.
"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; 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 in this state.
"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.
"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.
"Professional service limited liability company" means a limited
liability company organized under article twelve of the limited
liability company law.
"Registered limited liability partnership" means a partnership without
limited partners operating under an agreement governed by the laws of
this state, registered under section 121-1500 of this chapter and
complying with section 121-1501 of this chapter.
"Foreign related limited liability partnership" means a partnership
without limited partners operating under an agreement governed by the
laws of any jurisdiction, other than this state, which (i) is
denominated as a limited liability partnership or registered limited
liability partnership under such laws, (ii) is not a foreign limited
liability partnership under clause (i) or (ii) of the paragraph defining
foreign limited liability partnership in this section, (iii) is
affiliated with a professional service limited liability company,
foreign professional service limited liability company, professional
service corporation, foreign professional service corporation,
registered limited liability partnership that is a professional
partnership under this section or a foreign limited liability
partnership under clause (i) or (ii) of the paragraph defining foreign
limited liability partnership in this section, and (iv) renders services
related or complementary to the professional services rendered by, or
provides services or facilities to, such professional service limited
liability company, foreign professional service limited liability
company, professional service corporation, foreign professional service
corporation, registered limited liability partnership or foreign limited
liability partnership. For purposes of this paragraph, such a
partnership is affiliated with a professional service limited liability
company, foreign professional service limited liability company,
professional service corporation, foreign professional service
corporation, registered limited liability partnership or foreign limited
liability partnership if (1) at least a majority of partners in one
partnership are partners in the other partnership, (2) at least a
majority of the partners in each partnership also are partners, hold
interests or are members in a limited liability company or other
business entity, and each partnership renders services pursuant to an
agreement with such limited liability company or other business entity,
or (3) the partnerships or the partnership and such professional service
limited liability company, such foreign professional service limited
liability company, such professional service corporation, or such
foreign professional service corporation are affiliates within the
meaning of paragraph (a) of section nine hundred twelve of the business
corporation law.
"Related limited liability partnership" means a partnership without
limited partners operating under an agreement governed by the laws of
this state, which (i) is not a professional partnership under this
section, (ii) is affiliated with a professional service limited
liability company, foreign professional service limited liability
company, professional service corporation, foreign professional service
corporation, registered limited liability partnership that is a
professional partnership under this section or a foreign limited
liability partnership under clause (i) or (ii) of the paragraph defining
foreign limited liability partnership in this section, and (iii) renders
services related or complementary to the professional services rendered
by, or provides services or facilities to, such professional service
limited liability company, foreign professional service limited
liability company, professional service corporation, foreign
professional service corporation, registered limited liability
partnership or foreign limited liability partnership. For purposes of
this paragraph, such a partnership is affiliated with a professional
service limited liability company, foreign professional service limited
liability company, professional service corporation, foreign
professional service corporation, registered limited liability
partnership or foreign limited liability partnership if (1) at least a
majority of partners in one partnership are partners in the other
partnership, (2) at least a majority of the partners in each partnership
also are partners, hold interests or are members in a limited liability
company or other business entity, and each partnership renders services
pursuant to an agreement with such limited liability company or other
business entity, or (3) the partnerships or the partnership and such
professional service limited liability company, such foreign
professional service limited liability company, such professional
service corporation, or such foreign professional service corporation
are affiliates within the meaning of paragraph (a) of section nine
hundred twelve of the business corporation law.
§ 3. Interpretation of knowledge and notice. 1. A person has
"knowledge" of a fact within the meaning of this chapter not only when
he has actual knowledge thereof, but also when he has knowledge of such
other facts as in the circumstances shows bad faith.
2. A person has "notice" of a fact within the meaning of this chapter
when the person who claims the benefit of the notice:
(a) States the fact to such person, or
(b) Delivers through the mail, or by other means of communication, a
written statement of the fact to such person or to a proper person at
his place of business or residence.
§ 4. Rules of construction. 1. The rule that statutes in derogation of
the common law are to be strictly construed shall have no application to
this chapter.
2. The law of estoppel shall apply under this chapter.
3. The law of agency shall apply under this chapter.
4. This chapter shall be so interpreted and construed as to effect its
general purpose to make uniform the law of those states which enact it.
5. This chapter shall not be construed so as to impair the obligations
of any contract existing when the chapter goes into effect, nor to
affect any action or proceedings begun or right accrued before this
chapter takes effect.
§ 5. Rules for cases not provided for in this chapter. In any case not
provided for in this chapter the rules of law and equity, including the
law merchant, shall govern.
§ 10. Partnership defined. 1. A partnership is an association of two
or more persons to carry on as co-owners a business for profit and
includes for all purposes of the laws of this state, a registered
limited liability partnership.
2. But any association formed under any other statute of this state,
or any statute adopted by authority, other than the authority of this
state, is not a partnership under this chapter, unless such association
would have been a partnership in this state prior to the adoption of
this chapter; but this chapter shall apply to limited partnerships
except in so far as the statutes relating to such partnerships are
inconsistent herewith.
§ 11. Rules for determining the existence of a partnership. In
determining whether a partnership exists, these rules shall apply:
1. Except as provided by section twenty-seven persons who are not
partners as to each other are not partners as to third persons.
2. Joint tenancy, tenancy in common, tenancy by the entireties, joint
property, common property, or part ownership does not of itself
establish a partnership, whether such co-owners do or do not share any
profits made by the use of the property.
3. The sharing of gross returns does not of itself establish a
partnership, whether or not the persons sharing them have a joint or
common right or interest in any property from which the returns are
derived.
4. The receipt by a person of a share of the profits of a business is
prima facie evidence that he is a partner in the business, but no such
inference shall be drawn if such profits were received in payment:
(a) As a debt by installments or otherwise,
(b) As wages of an employee or rent to a landlord,
(c) As an annuity to a surviving spouse or representative of a
deceased partner,
(d) As interest on a loan, though the amount of payment vary with the
profits of the business,
(e) As the consideration for the sale of the good-will of a business
or other property by installments or otherwise.
§ 12. Partnership property. 1. All property originally brought into
the partnership stock or subsequently acquired, by purchase or
otherwise, on account of the partnership is partnership property.
2. Unless the contrary intention appears, property acquired with
partnership funds is partnership property.
3. Any estate in real property may be acquired in the partnership
name. Title so acquired can be conveyed only in the partnership name.
4. A conveyance to a partnership in the partnership name, though
without words of inheritance, passes the entire estate of the grantor
unless a contrary intent appears.
§ 20. Partner agent of partnership as to partnership business. 1.
Every partner is an agent of the partnership for the purpose of its
business, and the act of every partner, including the execution in the
partnership name of any instrument, for apparently carrying on in the
usual way the business of the partnership of which he is a member binds
the partnership, unless the partner so acting has in fact no authority
to act for the partnership in the particular matter, and the person with
whom he is dealing has knowledge of the fact that he has no such
authority.
2. An act of a partner which is not apparently for the carrying on of
the business of the partnership in the usual way does not bind the
partnership unless authorized by the other partners.
3. Unless authorized by the other partners or unless they have
abandoned the business, one or more but less than all the partners have
no authority to:
(a) Assign the partnership property in trust for creditors or on the
assignee's promise to pay the debts of the partnership.
(b) Dispose of the good-will of the business.
(c) Do any other act which would make it impossible to carry on the
ordinary business of the partnership.
(d) Confess a judgment.
(e) Submit a partnership claim or liability to arbitration or
reference.
4. No act of a partner in contravention of a restriction on his
authority shall bind the partnership to persons having knowledge of the
restriction.
§ 21. Conveyance of real property of the partnership. 1. Where title
to real property is in the partnership name, any partner may convey
title to such property by a conveyance executed in the partnership name;
but the partnership may recover such property unless the partner's act
binds the partnership under the provisions of subdivision one of section
twenty, or unless such property has been conveyed by the grantee or a
person claiming through such grantee to a holder for value without
knowledge that the partner, in making the conveyance, has exceeded his
authority.
2. Where title to real property is in the name of the partnership, a
conveyance executed by a partner, in his own name, passes the equitable
interest of the partnership, provided the act is one within the
authority of the partner under the provisions of subdivision one of
section twenty.
3. Where title to real property is in the name of one or more but not
all the partners, and the record does not disclose the right of the
partnership, the partners in whose name the title stands may convey
title to such property, but the partnership may recover such property if
the partners' act does not bind the partnership under the provisions of
subdivision one of section twenty, unless the purchaser or his assignee
is a holder for value, without knowledge.
4. Where the title to real property is in the name of one or more or
all the partners, or in a third person in trust for the partnership, a
conveyance executed by a partner in the partnership name, or in his own
name, passes the equitable interest of the partnership, provided the act
is one within the authority of the partner under the provisions of
subdivision one of section twenty.
5. Where the title to real property is in the names of all the
partners a conveyance executed by all the partners passes all their
rights in such property.
§ 22. Partnership bound by admission of partner. An admission or
representation made by any partner concerning partnership affairs within
the scope of his authority as conferred by this chapter is evidence
against the partnership.
§ 23. Partnership charged with knowledge of or notice to partner.
Notice to any partner of any matter relating to partnership affairs, and
the knowledge of the partner acting in the particular matter, acquired
while a partner or then present to his mind, and the knowledge of any
other partner who reasonably could and should have communicated it to
the acting partner, operate as notice to or knowledge of the
partnership, except in the case of a fraud on the partnership committed
by or with the consent of that partner.
§ 24. Partnership bound by partner's wrongful act. Where, by any
wrongful act or omission of any partner acting in the ordinary course of
the business of the partnership, or with the authority of his
copartners, loss or injury is caused to any person, not being a partner
in the partnership, or any penalty is incurred, the partnership is
liable therefor to the same extent as the partner so acting or omitting
to act.
§ 25. Partnership bound by partner's breach of trust. The partnership
is bound to make good the loss:
1. Where one partner acting within the scope of his apparent authority
receives money or property of a third person and misapplies it; and
2. Where the partnership in the course of its business receives money
or property of a third person and the money or property so received is
misapplied by any partner while it is in the custody of the partnership.
§ 26. Nature of partner's liability. (a) Except as provided in
subdivision (b) of this section, all partners are liable:
1. Jointly and severally for everything chargeable to the partnership
under sections twenty-four and twenty-five.
2. Jointly for all other debts and obligations of the partnership; but
any partner may enter into a separate obligation to perform a
partnership contract.
(b) Except as provided by subdivisions (c) and (d) of this section, no
partner of a partnership which is a registered limited liability
partnership is liable or accountable, directly or indirectly (including
by way of indemnification, contribution or otherwise), for any debts,
obligations or liabilities of, or chargeable to, the registered limited
liability partnership or each other, whether arising in tort, contract
or otherwise, which are incurred, created or assumed by such partnership
while such partnership is a registered limited liability partnership,
solely by reason of being such a partner or acting (or omitting to act)
in such capacity or rendering professional services or otherwise
participating (as an employee, consultant, contractor or otherwise) in
the conduct of the other business or activities of the registered
limited liability partnership.
(c) Notwithstanding the provisions of subdivision (b) of this section,
(i) each partner, employee or agent of a partnership which is a
registered limited liability partnership 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 registered limited liability partnership and (ii) each
shareholder, director, officer, member, manager, partner, employee 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 partner, employee or agent of a
partnership which is a registered limited liability partnership 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 partner, employee or
agent of such registered limited liability partnership. The relationship
of a professional to a registered limited liability partnership with
which such professional is associated, whether as a partner, 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 counsellor-at-law or a professional service corporation,
professional service limited liability company, foreign professional
service limited liability company, registered limited liability
partnership, foreign limited liability partnership, foreign professional
service corporation or professional partnership, engaged in the practice
of law, the other courts of this state.
(d) Notwithstanding the provisions of subdivision (b) of this section,
all or specified partners of a partnership which is a registered limited
liability partnership may be liable in their capacity as partners for
all or specified debts, obligations or liabilities of a registered
limited liability partnership to the extent at least a majority of the
partners shall have agreed unless otherwise provided in any agreement
between the partners. Any such agreement may be modified or revoked to
the extent at least a majority of the partners shall have agreed, unless
otherwise provided in any agreement between the partners; provided,
however, that (i) any such modification or revocation shall not affect
the liability of a partner for any debts, obligations or liabilities of
a registered limited liability partnership incurred, created or assumed
by such registered limited liability partnership prior to such
modification or revocation and (ii) a partner shall be liable for debts,
obligations and liabilities of the registered limited liability
partnership incurred, created or assumed after such modification or
revocation only in accordance with this article and, if such agreement
is further modified, such agreement as so further modified but only to
the extent not inconsistent with subdivision (c) of this section.
Nothing in this section shall in any way affect or impair the ability of
a partner to act as a guarantor or surety for, provide collateral for or
otherwise be liable for, the debts, obligations or liabilities of a
registered limited liability partnership.
(e) Subdivision (b) of this section shall not affect the liability of
a registered limited liability partnership out of partnership assets for
partnership debts, obligations and liabilities.
(f) Neither the withdrawal or revocation of a registered limited
liability partnership pursuant to subdivision (f) or (g), respectively,
of section 121-1500 of this chapter nor the dissolution, winding up or
termination of a registered limited liability partnership shall affect
the applicability of the provisions of subdivision (b) of this section
for any debt, obligation or liability incurred, created or assumed while
the partnership was a registered limited liability partnership.
§ 27. Partner by estoppel. 1. When a person, by words spoken or
written or by conduct, represents himself, or consents to another
representing him to any one, as a partner in an existing partnership or
with one or more persons not actual partners, he is liable to any such
person to whom such representation has been made, who has, on the faith
of such representation, given credit to the actual or apparent
partnership, and if he has made such representation or consented to its
being made in a public manner he is liable to such person, whether the
representation has or has not been made or communicated to such person
so giving credit by or with the knowledge of the apparent partner making
the representation or consenting to its being made.
(a) When a partnership liability results, he is liable as though he
were an actual member of the partnership.
(b) When no partnership liability results, he is liable jointly with
the other persons, if any, so consenting to the contract or
representation as to incur liability, otherwise separately.
2. When a person has been thus represented to be a partner in an
existing partnership, or with one or more persons not actual partners,
he is an agent of the persons consenting to such representation to bind
them to the same extent and in the same manner as though he were a
partner in fact, with respect to persons who rely upon the
representation. Where all the members of the existing partnership
consent to the representation, a partnership act or obligation results;
but in all other cases it is the joint act or obligation of the person
acting and the persons consenting to the representation.
§ 28. Liability of incoming partner. A person admitted as a partner
into an existing partnership is liable for all the obligations of the
partnership arising before his admission as though he had been a partner
when such obligations were incurred, except that his liability shall be
satisfied only out of partnership property.
§ 40. Rules determining rights and duties of partners. The rights and
duties of the partners in relation to the partnership shall be
determined, subject to any agreement between them, by the following
rules:
1. Each partner shall be repaid his contributions, whether by way of
capital or advances to the partnership property and share equally in the
profits and surplus remaining after all liabilities, including those to
partners, are satisfied; and except as provided in subdivision (b) of
section twenty-six of this chapter, each partner must contribute toward
the losses, whether of capital or otherwise, sustained by the
partnership according to his share in the profits.
2. Except as provided in subdivision (b) of section twenty-six of
this chapter, the partnership must indemnify every partner in respect of
payments made and personal liabilities reasonably incurred by him in the
ordinary and proper conduct of its business, or for the preservation of
its business or property.
3. A partner, who in aid of the partnership makes any payment or
advance beyond the amount of capital which he agreed to contribute,
shall be paid interest from the date of the payment or advance.
4. A partner shall receive interest on the capital contributed by him
only from the date when repayment should be made.
5. All partners have equal rights in the management and conduct of the
partnership business.
6. No partner is entitled to remuneration for acting in the
partnership business, except that a surviving partner is entitled to
reasonable compensation for his services in winding up the partnership
affairs.
7. No person can become a member of a partnership without the consent
of all the partners.
8. Any difference arising as to ordinary matters connected with the
partnership business may be decided by a majority of the partners; but
no act in contravention of any agreement between the partners may be
done rightfully without the consent of all the partners.
§ 41. Partnership books. The partnership books shall be kept, subject
to any agreement between the partners, at the principal place of
business of the partnership, and every partner shall at all times have
access to and may inspect and copy any of them.
§ 42. Duty of partners to render information. Partners shall render
on demand true and full information of all things affecting the
partnership to any partner or the legal representative of any deceased
partner or partner under legal disability.
§ 43. Partner accountable as a fiduciary. 1. Every partner must
account to the partnership for any benefit, and hold as trustee for it
any profits derived by him without the consent of the other partners
from any transaction connected with the formation, conduct, or
liquidation of the partnership or from any use by him of its property.
2. This section applies also to the representatives of a deceased
partner engaged in the liquidation of the affairs of the partnership as
the personal representatives of the last surviving partner.
§ 44. Right to an account. Any partner shall have the right to a
formal account as to partnership affairs:
1. If he is wrongfully excluded from the partnership business or
possession of its property by his copartners,
2. If the right exists under the terms of any agreement,
3. As provided by section forty-three,
4. Whenever other circumstances render it just and reasonable.
§ 45. Continuation of partnership beyond fixed term. 1. When a
partnership for a fixed term or particular undertaking is continued
after the termination of such term or particular undertaking without any
express agreement, the rights and duties of the partners remain the same
as they were at such termination, so far as is consistent with a
partnership at will.
2. A continuation of the business by the partners or such of them as
habitually acted therein during the term, without any settlement or
liquidation of the partnership affairs, is prima facie evidence of a
continuation of the partnership.
§ 50. Extent of property rights of a partner. The property rights of
a partner are (a) his rights in specific partnership property, (b) his
interest in the partnership, and (c) his right to participate in the
management.
§ 51. Nature of a partner's right in specific partnership property.
1. A partner is co-owner with his partners of specific partnership
property holding as a tenant in partnership.
2. The incidents of this tenancy are such that:
(a) A partner, subject to the provisions of this chapter and to any
agreement between the partners, has an equal right with his partners to
possess specific partnership property for partnership purposes; but he
has no right to possess such property for any other purpose without the
consent of his partners.
(b) A partner's right in specific partnership property is not
assignable except in connection with the assignment of the rights of all
the partners in the same property.
(c) A partner's right in specific partnership property is not subject
to attachment or execution, except on a claim against the partnership.
When partnership property is attached for a partnership debt the
partners, or any of them, or the representatives of a deceased partner,
cannot claim any right under the homestead or exemption laws.
(d) On the death of a partner his right in specific partnership
property vests in the surviving partner or partners, except where the
deceased was the last surviving partner, when his right in such property
vests in his legal representative. Such surviving partner or partners,
or the legal representative of the last surviving partner, has no right
to possess the partnership property for any but a partnership purpose.
(e) A partner's right in specific partnership property is not subject
to dower, curtesy, or allowances to surviving spouses, heirs, or next of
kin.
§ 52. Nature of partner's interest in the partnership. A partner's
interest in the partnership is his share of the profits and surplus and
the same is personal property.
§ 53. Assignment of partner's interest. 1. A conveyance by a partner
of his interest in the partnership does not of itself dissolve the
partnership, nor, as against the other partners in the absence of
agreement, entitle the assignee, during the continuance of the
partnership, to interfere in the management or administration of the
partnership business or affairs, or to require any information or
account of partnership transactions, or to inspect the partnership
books; but it merely entitles the assignee to receive in accordance with
his contract the profits to which the assigning partner would otherwise
be entitled.
2. In case of a dissolution of the partnership, the assignee is
entitled to receive his assignor's interest and may require an account
from the date only of the last account agreed to by all the partners.
§ 54. Partner's interest subject to charging order. 1. On due
application to a competent court by any judgment creditor of a partner,
the court which entered the judgment, order, or decree, or any other
court, may charge the interest of the debtor partner with payment of the
unsatisfied amount of such judgment debt with interest thereon. Upon
such application or upon the granting of an order attaching the interest
of the debtor partner before judgment, the court may then or later
appoint a receiver of his share of the profits, and of any other money
due or to fall due to him in respect of the partnership, and make all
other orders, directions, accounts and inquiries which the debtor
partner might have made, or which the circumstances of the case may
require.
2. The interest charged may be redeemed at any time before
foreclosure, or in case of a sale being directed by the court may be
purchased without thereby causing a dissolution:
(a) With separate property, by any one or more of the partners, or
(b) With partnership property, by any one or more of the partners with
the consent of all the partners whose interests are not so charged or
sold.
3. Nothing in this act shall be held to deprive a partner of his
right, if any, under the exemption laws, as regards his interest in the
partnership.
§ 60. Dissolution defined. The dissolution of a partnership is the
change in the relation of the partners caused by any partner ceasing to
be associated in the carrying on as distinguished from the winding up of
the business.
§ 61. Partnership not terminated by dissolution. On dissolution the
partnership is not terminated, but continues until the winding up of
partnership affairs is completed.
§ 62. Causes of dissolution. Dissolution is caused:
1. Without violation of the agreement between the partners,
(a) By the termination of the definite term or particular undertaking
specified in the agreement,
(b) By the express will of any partner when no definite term or
particular undertaking is specified,
(c) By the express will of all the partners who have not assigned
their interests or suffered them to be charged for their separate debts,
either before or after the termination of any specified term or
particular undertaking,
(d) By the expulsion of any partner from the business bona fide in
accordance with such a power conferred by the agreement between the
partners;
2. In contravention of the agreement between the partners, where the
circumstances do not permit a dissolution under any other provision of
this section, by the express will of any partner at any time;
3. By any event which makes it unlawful for the business of the
partnership to be carried on or for the members to carry it on in
partnership;
4. By the death of any partner;
5. By the bankruptcy of any partner or the partnership;
6. By decree of court under section sixty-three.
§ 63. Dissolution by decree of court. The court shall decree a
dissolution.
1. On application by or for a partner whenever:
(a) A partner has been declared incompetent in any judicial proceeding
or is shown to be of unsound mind,
(b) A partner becomes in any other way incapable of performing his
part of the partnership contract,
(c) A partner has been guilty of such conduct as tends to affect
prejudicially the carrying on of the business,
(d) A partner wilfully or persistently commits a breach of the
partnership agreement, or otherwise so conducts himself in matters
relating to the partnership business that it is not reasonably
practicable to carry on the business in partnership with him,
(e) The business of the partnership can only be carried on at a loss,
(f) Other circumstances render a dissolution equitable;
2. On the application of the purchaser of a partner's interest under
sections fifty-three or fifty-four:
(a) After the termination of the specified term or particular
undertaking,
(b) At any time if the partnership was a partnership at will when the
interest was assigned or when the charging order was issued.
§ 64. General effect of dissolution on authority of partner. Except
so far as may be necessary to wind up partnership affairs or to complete
transactions begun but not then finished, dissolution terminates all
authority of any partner to act for the partnership,
1. With respect to the partners:
(a) When the dissolution is not by the act, bankruptcy or death of a
partner; or
(b) When the dissolution is by such act, bankruptcy or death of a
partner, in cases where section sixty-five so requires.
2. With respect to persons not partners, as declared in section
sixty-six.
§ 65. Right of partner to contribution from copartners after
dissolution. Where the dissolution is caused by the act, death or
bankruptcy of a partner, each partner is liable to his copartners for
his share of any liability created by any partner acting for the
partnership as if the partnership had not been dissolved unless
1. The dissolution being by act of any partner, the partner acting for
the partnership had knowledge of the dissolution,
2. The dissolution being by the death or bankruptcy of a partner, the
partner acting for the partnership had knowledge or notice of the death
or bankruptcy, or
3. The liability is for a debt, obligation or liability for which the
partner is not liable as provided in subdivision (b) of section
twenty-six of this chapter.
§ 66. Power of partner to bind partnership to third persons after
dissolution. (1) After dissolution a partner can bind the partnership
except as provided in subdivision three
(a) By any act appropriate for winding up partnership affairs or
completing transactions unfinished at dissolution;
(b) By any transaction which would bind the partnership if dissolution
had not taken place, provided the other party to the transaction
(I) Had extended credit to the partnership prior to dissolution and
had no knowledge or notice of the dissolution; or
(II) Though he had not so extended credit, had nevertheless known of
the partnership prior to the dissolution, and, having no knowledge or
notice of dissolution, the fact of dissolution had not been advertised
in a newspaper of general circulation in the place (or in each place if
more than one) at which the partnership business was regularly carried
on.
2. The liability of a partner under subdivision one, paragraph (b),
shall be satisfied out of partnership assets alone when such partner had
been prior to dissolution
(a) Unknown as a partner to the person with whom the contract is made;
and
(b) So far unknown and inactive in partnership affairs that the
business reputation of the partnership could not be said to have been in
any degree due to his connection with it.
3. The partnership is in no case bound by any act of a partner after
dissolution
(a) Where the partnership is dissolved because it is unlawful to carry
on the business, unless the act is appropriate for winding up partnerhip
affairs; or
(b) Where the partner has become bankrupt; or
(c) Where the partner has no authority to wind up partnership affairs,
except by a transaction with one who
(I) Had extended credit to the partnership prior to dissolution and
had no knowledge or notice of his want of authority; or
(II) Had not extended credit to the partnership prior to dissolution,
and, having no knowledge or notice of his want of authority, the fact of
his want of authority has not been advertised in the manner provided for
advertising the fact of dissolution in subdivision one, paragraph (b),
clause (II).
4. Nothing in this section shall affect the liability under section
twenty-seven of any person who after dissolution represents himself or
consents to another representing him as a partner in a partnership
engaged in carrying on business.
§ 67. Effect of dissolution on partner's existing liability. 1. The
dissolution of the partnership does not of itself discharge the existing
liability of any partner.
2. A partner is discharged from any existing liability upon
dissolution of the partnership by an agreement to that effect between
himself, the partnership creditor and the person or partnership
continuing the business; and such agreement may be inferred from the
course of dealing between the creditor having knowledge of the
dissolution and the person or partnership continuing the business.
3. Where a person agrees to assume the existing obligations of a
dissolved partnership, the partners whose obligations have been assumed
shall be discharged from any liability to any creditor of the
partnership who, knowing of the agreement, consents to a material
alteration in the nature or time of payment of such obligations.
4. The individual property of a deceased partner shall be liable for
those obligations of the partnership incurred while he was a partner and
for which he was liable under section twenty-six of this chapter but
subject to the prior payment of his separate debts.
§ 68. Right to wind up. Unless otherwise agreed the partners who have
not wrongfully dissolved the partnership or the legal representative of
the last surviving partner, not bankrupt, has the right to wind up the
partnership affairs; provided, however, that any partner, his legal
representative, or his assignee, upon cause shown, may obtain winding up
by the court.
§ 69. Rights of partners to application of partnership property 1.
When dissolution is caused in any way, except in contravention of the
partnership agreement, each partner, as against his copartners and all
persons claiming through them in respect of their interests in the
partnership, unless otherwise agreed, may have the partnership property
applied to discharge its liabilities, and the surplus applied to pay in
cash the net amount owing to the respective partners. But if dissolution
is caused by expulsion of a partner, bona fide under the partnership
agreement, and if the expelled partner is discharged from all
partnership liabilities, either by payment or agreement under section
sixty-seven, subdivision two, he shall receive in cash only the net
amount due him from the partnership.
2. When dissolution is caused in contravention of the partnership
agreement the rights of the partners shall be as follows:
(a) Each partner who has not caused dissolution wrongfully shall have,
(I) All the rights specified in subdivision one of this section, and
(II) The right, as against each partner who has caused the dissolution
wrongfully, to damages for breach of the agreement.
(b) The partners who have not caused the dissolution wrongfully, if
they all desire to continue the business in the same name, either by
themselves or jointly with others, may do so, during the agreed term for
the partnership and for that purpose may possess the partnership
property, provided they secure the payment by bond approved by the
court, or pay to any partner who has caused the dissolution wrongfully,
the value of his interest in the partnership at the dissolution, less
any damages recoverable under clause (II) of paragraph (a) of
subdivision two of this section, and in like manner indemnify him
against all present or future partnership liabilities.
(c) A partner who has caused the dissolution wrongfully shall have:
(I) If the business is not continued under the provisions of paragraph
(b) of subdivision two of this section all the rights of a partner under
subdivision (1), subject to clause (II) of paragraph (a) of subdivision
two, of this section.
(II) If the business is continued under paragraph (b) of subdivision
two of this section the right as against his copartners and all claiming
through them in respect of their interest in the partnership, to have
the value of his interest in the partnership, less any damages caused to
his copartners by the dissolution, ascertained and paid to him in cash,
or the payment secured by bond approved by the court, and to be released
from all existing liabilities of the partnership; but in ascertaining
the value of the partner's interest the value of the good-will of the
business shall not be considered.
§ 70. Rights where partnership is dissolved for fraud, or
misrepresentation. Where a partnership contract is rescinded on the
ground of the fraud or misrepresentation of one of the parties thereto,
the party entitled to rescind is, without prejudice to any other right,
entitled,
(a) To a lien on, or right of retention of, the surplus of the
partnership property after satisfying the partnership liabilities to
third persons for any sum of money paid by him for the purchase of an
interest in the partnership and for any capital or advances contributed
by him; and
(b) To stand, after all liabilities to third persons have been
satisfied, in the place of the creditors of the partnership for any
payments made by him in respect of the partnership liabilities; and
(c) To be indemnified by the person guilty of the fraud or making the
representation against all debts and liabilities of the partnership.
§ 71. Rules for distribution. In settling accounts between the
partners after dissolution, the following rules shall be observed,
subject to any agreement to the contrary:
(a) The assets of the partnership are:
I. The partnership property,
II. The contributions of the partners specified in paragraph (d) of
this subdivision.
(b) The liabilities of the partnership shall rank in order of payment,
as follows:
I. Those owing to creditors other than partners,
II. Those owing to partners other than for capital and profits,
III. Those owing to partners in respect of capital,
IV. Those owing to partners in respect of profits.
(c) The assets shall be applied in the order of their declaration in
clause (a) of this paragraph to the satisfaction of the liabilities.
(d) Except as provided in subdivision (b) of section twenty-six of
this section: (1) partners shall contribute, as provided by section
forty, subdivision one, the amount necessary to satisfy the liabilities;
and (2) if any, but not all, of the partners are insolvent, or, not
being subject to process, refuse to contribute, the other partners shall
contribute their share of the liabilities, and, in the relative
proportions in which they share the profits, the additional amount
necessary to pay the liabilities.
(e) An assignee for the benefit of creditors or any person appointed
by the court shall have the right to enforce the contributions specified
in paragraph (d) of this subdivision.
(f) Any partner or his legal representative shall have the right to
enforce the contributions specified in paragraph (d) of this
subdivision, to the extent of the amount which he has paid in excess of
his share of the liability.
(g) The individual property of a deceased partner shall be liable for
the contributions specified in paragraph (d) of this subdivision.
(h) When partnership property and the individual properties of the
partners are in the possession of a court for distribution, partnership
creditors shall have priority on partnership property and separate
creditors on individual property, saving the rights of lien or secured
creditors as heretofore.
(i) Where a partner has become bankrupt or his estate is insolvent the
claims against his separate property shall rank in the following order:
I. Those owing to separate creditors,
II. Those owing to partnership creditors,
III. Those owing to partners by way of contribution.
§ 71-a. Payment of wages by receivers. Upon the appointment of a
receiver of a partnership the wages of the employees of such partnership
shall be preferred to every other debt or claim.
§ 72. Liability of persons continuing the business in certain cases.
1. When any new partner is admitted into an existing partnership, or
when any partner retires and assigns (or the representative of the
deceased partner assigns) his rights in partnership property to two or
more of the partners, or to one or more of the partners and one or more
third persons, if the business is continued without liquidation of the
partnership affairs, creditors of the first or dissolved partnership are
also creditors of the partnership so continuing the business.
2. When all but one partner retire and assign (or the representative
of a deceased partner assigns) their rights in partnership property to
the remaining partner, who continues the business without liquidation of
partnership affairs, either alone or with others, creditors of the
dissolved partnership are also creditors of the person or partnership so
continuing the business.
3. When any partner retires or dies and the business of the dissolved
partnership is continued as set forth in subdivisions one and two of
this section, with the consent of the retired partners or the
representative of the deceased partner, but without any assignment of
his right in partnership property, rights of creditors of the dissolved
partnership and of the creditors of the person or partnership continuing
the business shall be as if such assignment had been made.
4. When all the partners or their representatives assign their rights
in partnership property to one or more third persons who promise to pay
the debts and who continue the business of the dissolved partnership,
creditors of the dissolved partnership are also creditors of the person
or partnership continuing the business.
5. When any partner wrongfully causes a dissolution and the remaining
partners continue the business under the provisions of section
sixty-nine, paragraph (b) of subdivision two, either alone or with
others, and without liquidation of the partnership affairs, creditors of
the dissolved partnership are also creditors of the person or
partnership continuing the business.
6. When a partner is expelled and the remaining partners continue the
business either alone or with others, without liquidation of the
partnership affairs, creditors of the dissolved partnership are also
creditors of the person or partnership continuing the business.
7. The liability of a third person becoming a partner in the
partnership continuing the business under this section to the creditors
of the dissolved partnership shall be satisfied out of partnership
property only.
8. When the business of a partnership after dissolution is continued
under any conditions set forth in this section the creditors of the
dissolved partnership, as against the separate creditors of the retiring
or deceased partner or the representative of the deceased partner, have
a prior right to any claim of the retired partner or the representative
of the deceased partner against the person or partnership continuing the
business, on account of the retired or deceased partner's interest in
the dissolved partnership or on account of any consideration promised
for such interest or for his right in partnership property.
9. Nothing in this section shall be held to modify any right of
creditors to set aside any assignment on the ground of fraud.
10. The use by the person or partnership continuing the business of
the partnership name, or the name of a deceased partner as part thereof,
shall not of itself make the individual property of the deceased partner
liable for any debts contracted by such person or partnership.
§ 73. Rights of retiring or estate of deceased partner when the
business is continued. When any partner retires or dies, and the
business is continued under any of the conditions set forth in section
seventy-two, subdivisions one, two, three, five and six, or section
sixty-nine, paragraph (b) of subdivision two, without any settlement of
accounts as between him or his estate and the person or partnership
continuing the business, unless otherwise agreed, he or his legal
representative as against such persons or partnership may have the value
of his interest at the date of dissolution ascertained, and shall
receive as an ordinary creditor an amount equal to the value of his
interest in the dissolved partnership with interest, or, at his option
or at the option of his legal representative, in lieu of interest, the
profits attributable to the use of his right in the property of the
dissolved partnership; provided that the creditors of the dissolved
partnership as against the separate creditors, or the representative of
the retired or deceased partner, shall have priority on any claim
arising under this section, as provided by section seventy-two,
subdivision eight of this chapter.
§ 74. Accrual of actions. The right to an account of his interest
shall accrue to any partner, or his legal representative, as against the
winding up partners or the surviving partners or the person or
partnership continuing the business, at the date of dissolution, in the
absence of agreement to the contrary.
§ 75. Continuance of partnership business during action for
accounting. In an action brought to dissolve a partnership, or for an
accounting between partners, or affecting the continued prosecution of
the business, the court may, in its discretion, by order, authorize the
partnership business to be continued, during the pendency of the action
by one or more of the partners, upon their executing and filing with the
clerk an undertaking, in such a sum and with such sureties as the order
prescribes, to the effect that they will obey all orders of the court,
in the action, and perform all things which the judgment therein
requires them to perform. The court may impose such other conditions as
it deems proper, and it may in its discretion at any time thereafter
require a new undertaking to be given. The court may also ascertain the
value of the partnership property, and of the interest of the respective
partners by a reference or otherwise, and may direct an accounting
between any of the partners; and the judgment may make such provision
for the payment to the retiring partners, for their interest, and with
respect to the rights of creditors, the title to the partnership
property, and otherwise, as justice requires, with or without the
appointment of a receiver, or a sale of the partnership property.
§ 80. When partnership or business name may be continued. The use of
a partnership or a business name may be continued in either of the
following cases:
1. Where the business of any firm or partnership in this state, having
business relations with foreign countries or which has transacted
business in this state or in any other state or territory of the United
States continues to be conducted by some or any of the partners, their
or any of their assignees, appointees or successors in interest.
2. Where any partnership shall hereafter be formed under the laws of
this state it may use the firm or corporate name of any general or
limited partnership or of any corporation, domestic or foreign, which
may theretofore have carried on its business within this state, where
said general or limited partnership or corporation has discontinued or
shall be about to discontinue its business within the state, and where a
majority of the partners, general or special, in either of such last
mentioned copartnerships or of the survivors thereof shall be members of
the new copartnership, or where a majority of the members of such
copartnership theretofore existing or of the surviving members thereof,
or where stockholders holding a majority of the stock of such
corporation shall consent in writing to the use of such firm or
corporate name by such new copartnership; or
3. Where any resident of this state dies, who at the time of his death
and for at least five years immediately prior thereto, conducted and
carried on in his sole name, any business in this state, or who at the
time of his death, so conducted and carried on any business having
relation with other states or foreign countries, the right to use the
name of such person, for the purpose of continuing and carrying on such
business, shall survive and pass and be disposed of and accounted for as
a part of the personal estate of such deceased person, and such business
may be continued and carried on under such name by any person who comes
into the legal possession thereof.
§ 81. Certificate to be filed. Whenever a partnership or business
name continues to be used as provided by section eighty, the person or
persons using such name shall sign and acknowledge or swear to a
certificate, declaring the person or persons intending to deal under
such name, with their respective places of residence, and file the same
in the clerk's office of the county where the principal place of
business is located, and cause a copy of such certificate to be
published once in each week for four consecutive weeks in a newspaper of
the city or town in which such principal place of business is located,
or if none be published in such city or town, in the newspaper nearest
thereto. A county clerk with whom any such certificate is filed, shall
keep a register in which shall be entered in alphabetical order the name
of every such partnership and of the partners thereof, and every such
business name of a deceased person and the names of the person filing
certificates therefor.
§ 82. Fictitious firm names prohibited. No person shall hereafter
transact business in the name of a partner not interested in his firm,
and when the designation "and company," or "and Co." is used, it shall
represent an actual partner; but a violation of this section shall not
be a defense in an action or proceeding brought by an assignee for the
benefit of creditors or by a receiver of the property of or by an
executor or administrator of a person who has violated the same.
§ 90. Limited partnership defined. A limited partnership is a
partnership formed by two or more persons under the provisions of
section ninety-one, having as members one or more general partners and
one or more limited partners. The limited partners as such shall not be
bound by the obligations of the partnership.
§ 91. Formation. (1) Two or more persons desiring to form a limited
partnership shall
(a) Sign and acknowledge or swear to a certificate, which shall state.
I. The name of the partnership.
II. The character of the business.
III. The location of the principal place of business.
IV. The name and place of residence of each member; general and
limited partners being respectively designated.
V. The term for which the partnership is to exist.
VI. The amount of cash and a description of and the agreed value of
the other property contributed by each limited partner.
VII. The additional contributions, if any, agreed to be made by each
limited partner and the times at which or events on the happening of
which they shall be made.
VIII. The time, if agreed upon, when the contribution of each limited
partner is to be returned.
IX. The share of the profits or the other compensation by way of
income which each limited partner shall receive by reason of his
contribution.
X. The right, if given, of a limited partner to substitute an assignee
as contributor in his place, and the terms and conditions of the
substitution.
XI. The right, if given, of the partners to admit additional limited
partners.
XII. The right, if given, of one or more of the limited partners to
priority over other limited partners, as to contributions or as to
compensation by way of income, and the nature of such priority.
XIII. The right, if given, of the remaining general partner or
partners to continue the business on the death, retirement or insanity
of a general partner, and
XIV. The right, if given, of a limited partner to demand and receive
property other than cash in return for his contribution.
(b) File the certificate in the office of the county clerk of the
county in which the principal office of such partnership is located.
Immediately after the filing of the certificate, 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
such original certificate is filed, to be designated by the county
clerk, one of which newspapers shall be a newspaper published in the
city or town in which the principal place of business is intended to be
located, if a newspaper be published therein; or, if no newspaper is
published therein, in the newspaper nearest thereto, and proof of such
publication by the affidavit of the printer or publisher of each of such
newspapers must be filed with the original certificate.
(2) If there has been substantial compliance in good faith with the
requirements of paragraph (a) of subdivision one of this section, a
limited partnership is formed and may commence the transaction of
business as such upon the filing of its certificate as required by
paragraph (b) of subdivision one of this section and the effectuation of
the first of the six successive weekly publications required by said
paragraph (b); provided, however, that the continued existence of a
limited partnership as such shall be conditioned upon completion of the
publication requirement contained in said paragraph (b).
§ 92. Business which may be carried on. A limited partnership may
carry on any business which a partnership without limited partners may
carry on.
§ 93. Character of limited partner's contribution. The contributions
of a limited partner may be cash or other property, but not services.
§ 94. Name not to contain surname of limited partner; exceptions. (1)
The surname of a limited partner shall not appear in the partnership
name, unless
(a) It is also the surname of a general partner, or
(b) Prior to the time when the limited partner became such the
business had been carried on under a name in which his surname appeared.
(2) A limited partner whose name appears in a partnership name
contrary to the provisions of subdivision one of this section is liable
as a general partner to partnership creditors who extend credit to the
partnership without actual knowledge that he is not a general partner.
§ 95. Liability for false statements in certificate. If the
certificate contains a false statement, one who suffers loss by reliance
on such statement may hold liable any party to the certificate who knew
the statement to be false
(a) At the time he signed the certificate, or
(b) Subsequently, but within a sufficient time before the statement
was relied upon to enable him to cancel or amend the certificate, or to
file a petition for its cancellation or amendment as provided in section
one hundred and fourteen of this article.
§ 96. Limited partner not liable to creditors. A limited partner
shall not become liable as a general partner unless, in addition to the
exercise of his rights and powers as a limited partner, he takes part in
the control of the business; and the exercise of the rights and powers
granted by subdivision three of section ninety-nine of this chapter
shall not constitute taking part in the control of the business. The
commencement of or other participation by a limited partner in an action
brought pursuant to section one hundred fifteen-a of this article shall
not be deemed to be a taking part in the control of the business within
the meaning of this section.
§ 97. Admission of additional limited partners. After the formation
of a limited partnership, additional limited partners may be admitted
upon filing an amendment to the original certificate in accordance with
the requirements of section one hundred and fourteen.
§ 98. Rights, powers and liabilities of a general partner. (1) A
general partner shall have all the rights and powers and be subject to
all the restrictions and liabilities of a partner in a partnership
without limited partners, except that without the written consent or
ratification of the specific act by all the limited partners, a general
partner or all of the general partners have no authority to
(a) Do any act in contravention of the certificate.
(b) Do any act which would make it impossible to carry on the ordinary
business of the partnership.
(c) Confess a judgment against the partnership.
(d) Possess partnership property, or assign their rights in specific
partnership property, for other than a partnership purpose.
(e) Admit a person as a general partner.
(f) Admit a person as a limited partner, unless the right so to do is
given in the certificate.
(g) Continue the business with partnership property on the death,
retirement or insanity of a general partner, unless the right so to do
is given in the certificate.
§ 99. Rights of a limited partner. (1) A limited partner shall have
the same rights as a general partner to
(a) Have the partnership books kept at the principal place of business
of the partnership, and at all times to inspect and copy any of them.
(b) Have on demand true and full information of all things affecting
the partnership, and a formal account of partnership affairs whenever
circumstances render it just and reasonable, and
(c) Have dissolution and winding up by decree of court.
(2) A limited partner shall have the right to receive a share of the
profits or other compensation by way of income, and to the return of his
contribution as provided in sections one hundred and four and one
hundred and five of this article.
(3) When the limited partnership is qualified as an investment company
under the Investment Company Act of 1940, the limited partner shall have
the right to vote: (a) in the election of directors or trustees of the
investment company; (b) to approve or terminate investment advisory or
underwriting contracts; (c) for approval of auditors; and (d) any other
matters that the Investment Company Act of 1940 requires to be approved
by the holders of beneficial interests in the investment company.
§ 100. Status of person erroneously believing himself a limited
partner. A person who has contributed to the capital of a business
conducted by a person or partnership erroneously believing that he has
become a limited partner in a limited partnership is not, by reason of
his exercise of the rights of a limited partner, a general partner with
the person or in the partnership carrying on the business, or bound by
the obligations of such person or partnership; provided that on
ascertaining the mistake he promptly renounces his interest in the
profits of the business, or other compensation by way of income.
§ 101. One person both general and limited partner. (1) A person may
be a general partner and a limited partner in the same partnership at
the same time.
(2) A person who is a general, and also at the same time a limited
partner, shall have all the rights and powers and be subject to all the
restrictions of a general partner; except that, in respect to his
contributions, he shall have the rights against the other members which
he would have had if he were not also a general partner.
§ 102. Loans and other business transactions with limited partner. (1)
A limited partner also may loan money to and transact other business
with the partnership, and, unless he is also a general partner, receive
on account of resulting claims against the partnership, with general
creditors, a pro rata share of the assets. No limited partner shall in
respect to any such claim
(a) Receive or hold as collateral security any partnership property,
or,
(b) Receive from a general partner or the partnership any payment,
conveyance or release from liability, if at the time the assets of the
partnership are not sufficient to discharge partnership liabilities to
persons not claiming as general or limited partners.
(2) The receiving of collateral security, or a payment, conveyance or
release in violation of the provisions of subdivision one is a fraud on
the creditors of the partnership.
§ 103. Relation of limited partners inter se. Where there are several
limited partners the members may agree that one or more of the limited
partners shall have a priority over other limited partners as to the
return of their contributions, as to their compensation by way of
income, or as to any other matter. If such an agreement is made it shall
be stated in the certificate, and in the absence of such a statement all
the limited partners shall stand upon equal footing.
§ 104. Compensation of limited partner. A limited partner may receive
from the partnership the share of the profits or the compensation by way
of income stipulated for in the certificate; provided, that after such
payment is made, whether from the property of the partnership or that of
a general partner, the partnership assets are in excess of all
liabilities of the partnership except liabilities to limited partners on
account of their contributions and to general partners.
§ 105. Withdrawal or reduction of limited partner's contribution. (1)
A limited partner shall not receive from a general partner or out of
partnership property any part of his contribution until
(a) All liabilities of the partnership, except liabilities to general
partners and to limited partners on account of their contributions, have
been paid or there remains property of the partnership sufficient to pay
them.
(b) The consent of all members is had, unless the return of the
contribution may be rightfully demanded under the provisions of
subdivision two, and
(c) The certificate is cancelled or so amended as to set forth the
withdrawal or reduction.
(2) Subject to the provisions of subdivision one, a limited partner
may rightfully demand the return of his contribution
(a) On the dissolution of a partnership, or,
(b) When the date specified in the certificate for its return has
arrived, or,
(c) After he has given six months' notice in writing to all other
members, if no time is specified in the certificate either for the
return of the contribution or for the dissolution of the partnership.
(3) In the absence of any statement in the certificate to the contrary
or the consent of all members, a limited partner, irrespective of the
nature of his contribution, has only the right to demand and receive
cash in return for his contribution.
(4) A limited partner may have the partnership dissolved and its
affairs wound up when
(a) He rightfully but unsuccessfully demands the return of his
contribution, or,
(b) The other liabilities of the partnership have not been paid, or
the partnership property is insufficient for their payment and the
limited partner would otherwise be entitled to the return of his
contribution.
§ 106. Liability of limited partner to partnership. (1) A limited
partner is liable to the partnership
(a) For the difference between his contribution as actually made and
that stated in the certificate as having been made, and
(b) For any unpaid contributions which he agreed in the certificate to
make in the future at the time and on the conditions stated in the
certificate.
(2) A limited partner holds as trustee for the partnership
(a) Specific property stated in the certificate as contributed by him,
but which was not contributed or which has been wrongfully returned, and
(b) Money or other property wrongfully paid or conveyed to him on
account of his contribution.
(3) The liabilities of a limited partner as set forth in this section
can be waived or compromised only by the consent of all members; but a
waiver or compromise shall not affect the right of a creditor of a
partnership, who extended credit or whose claim arose after the filing
and before a cancellation or amendment of the certificate, to enforce
such liabilities.
(4) When a contributor has rightfully received the return in whole or
in part of the capital of his contribution, he is nevertheless liable to
the partnership for any sum, not in excess of such return with interest,
necessary to discharge its liabilities to all creditors who extended
credit or whose claims arose before such return.
§ 107. Nature of interest in partnership. A limited partner's
interest in the partnership is personal property.
§ 108. Assignment of interest. (1) A limited partner's interest is
assignable.
(2) A substituted limited partner is a person admitted to all the
rights of a limited partner who has died or has assigned his interest in
a partnership.
(3) An assignee, who does not become a substituted limited partner,
has no right to require any information or account of the partnership
transactions or to inspect the partnership books; he is only entitled to
receive the share of the profits or other compensation by way of income,
or the return of his contribution, to which his assignor would otherwise
be entitled.
(4) An assignee shall have the right to become a substituted limited
partner if all the members, except the assignor, consent thereto or if
the assignor, being thereunto empowered by the certificate, gives the
assignee that right.
(5) An assignee becomes a substituted limited partner when the
certificate is appropriately amended in accordance with section one
hundred and fourteen of this article.
(6) The substituted limited partner has all the rights and powers, and
is subject to all the restrictions and liabilities of his assignor,
except those liabilities of which he was ignorant at the time he became
a limited partner and which could not be ascertained from the
certificate.
(7) The substitution of the assignee as a limited partner does not
release the assignor from liability to the partnership under sections
ninety-five and one hundred and six.
§ 109. Effect of retirement, death or insanity of a general partner.
The retirement, death or insanity of a general partner dissolves the
partnership, unless the business is continued by the remaining general
partners
(a) Under a right so to do stated in the certificate, or,
(b) With the consent of all members.
§ 110. Death of limited partner. (1) On the death of a limited
partner his executor or administrator shall have all the rights of a
limited partner for the purpose of settling his estate, and such power
as the deceased had to constitute his assignee a substituted limited
partner.
(2) The estate of a deceased limited partner shall be liable for all
his liabilities as a limited partner.
§ 111. Rights of creditors of limited partner. (1) On due application
to a court of competent jurisdiction by any judgment creditor of a
limited partner, the court may charge the interest of the indebted
limited partner with payment of the unsatisfied amount of the judgment
debt; and may appoint a receiver, and make all other orders, directions,
and inquiries which the circumstances of the case may require.
(2) The interest may be redeemed with the separate property of any
general partner, but may not be redeemed with partnership property.
(3) The remedies conferred by subdivision one of this section shall
not be deemed exclusive of others which may exist.
(4) Nothing in this act shall be held to deprive a limited partner of
his statutory exemption.
§ 112. Distribution of assets. (1) In settling accounts after
dissolution the liabilities of the partnership shall be entitled to
payment in the following order:
(a) Those to creditors, in the order of priority as provided by law,
except those to limited partners on account of their contributions, and
to general partners.
(b) Those to limited partners in respect to their share of the profits
and other compensation by way of income on their contributions.
(c) Those to limited partners in respect to the capital of their
contributions.
(d) Those to general partners other than for capital and profits.
(e) Those to general partners in respect to profits.
(f) Those to general partners in respect to capital.
(2) Subject to any statement in the certificate or to subsequent
agreement, limited partners share in the partnership assets in respect
to their claims for capital, and in respect to their claims for profits
or for compensation by way of income on their contributions
respectively, in proportion to the respective amounts of such claims.
§ 113. Certificate cancelled or amended. (1) The certificate shall be
cancelled when the partnership is dissolved or all limited partners
cease to be such.
(2) A certificate shall be amended when
(a) There is a change in the name of the partnership or in the amount
or character of the contribution of any limited partner,
(b) A person is substituted as a limited partner,
(c) An additional limited partner is admitted,
(d) A person is admitted as a general partner,
(e) A general partner retires, dies or becomes mentally ill, and the
business is continued under section one hundred and nine,
(f) There is a change in the character of the business of the
partnership, or a change in the location of the principal place of
business,
(g) There is a false or erroneous statement in the certificate,
(h) There is a change in the time as stated in the certificate for the
dissolution of the partnership or for the return of a contribution,
(i) A time is fixed for the dissolution of the partnership, or the
return of a contribution, no time having been specified in the
certificate, or,
(j) The members desire to make a change in any other statement in the
certificate in order that it shall accurately represent the agreement
between them.
§ 114. Requirements for amendment or cancellation. (1) The writing to
amend a certificate shall
(a) Conform to the requirements of subdivision one-a of section
ninety-one of this article, as far as necessary to set forth clearly the
change in the certificate which it is desired to make, and
(b) Be signed and acknowledged or sworn to by all members, except that
a writing making a change in the statement of the place of residence of
any member shall be signed and acknowledged by such member only. An
amendment substituting a limited partner or adding a limited or general
partner shall be signed also by the member to be substituted or added,
and when a limited partner is to be substituted, the amendment shall
also be signed by the assigning limited partner.
(2) The writing to cancel a certificate shall be signed by all
members.
(3) A person desiring the cancellation or amendment of a certificate,
if any person designated in subdivisions one and two of this section as
a person who must execute the writing refuses to do so, may petition the
supreme court to direct a cancellation or amendment thereof.
(4) If the court finds that the petitioner has a right to have the
writing executed by a person who refuses to do so, it shall order the
county clerk of the county where the certificate is filed to file the
cancellation or amendment of the certificate; and where the certificate
is to be amended, the court shall also cause to be filed in said office
a certified copy of its decree setting forth the amendment.
(5) A certificate is amended or cancelled when there is filed in the
office of the county clerk where the certificate is filed.
(a) A writing in accordance with the provisions of subdivisions one
and two of this section, or,
(b) A certified copy of the order of the court in accordance with the
provisions of subdivision four thereof
Provided, however, that in the case of an amendment made where there
is a change to another county of the location of the principal place of
business, a certificate is not amended until a certified copy of the
certificate and certified copies of all writings or certified copies of
orders amending the certificate are also filed in the office of the
county clerk of the county to which the location of the principal place
of business is changed.
(6) After the certificate is duly amended in accordance with this
section, the amended certificate shall thereafter be for all purposes
the certificate provided for by this article, and when the certificate
has been amended by reason of a change to another county of the location
of the principal place of business, the county in which a certified copy
of the amended certificate was last filed shall thereafter be deemed to
be the county where the certificate is filed.
§ 115. Parties to actions. A contributor, unless he is a general
partner, is not a proper party to proceedings by or against a
partnership, except where the object is to enforce a limited partner's
right against or liability to the partnership, and except in cases
provided for in section one hundred fifteen-a of this article.
§ 115-a. Limited partners' derivative action brought in the right of a
limited partnership to procure a judgment in its favor. 1. An action
may be brought in the right of a limited partnership to procure a
judgment in its favor, by a limited partner, additional limited partner,
or substituted limited partner.
2. In any such action, it shall be made to appear that at least one
plaintiff is such a limited partner, additional limited partner or
substituted limited partner at the time of bringing the action, and that
he was such at the time of the transaction of which he complains, or
that his status as substituted limited partner devolved upon him by
operation of law or pursuant to the terms of the certificate of limited
partnership or written partnership agreement in effect at the time of
the transaction of which he complains.
3. In any such action, the complaint shall set forth with
particularity the efforts of the plaintiff to secure the initiation of
such action by the general partner or partners, or the reasons for not
making such effort.
4. Such action shall not be discontinued, compromised or settled,
without the approval of the court having jurisdiction of the action. If
the court shall determine that the interests of the limited partners,
additional limited partners or substituted limited partners, will be
substantially affected by such discontinuance, compromise or settlement,
the court, in its discretion, may direct that notice, by publication or
otherwise, shall be given to the limited, additional or substituted
limited partners whose interests it determines will be so affected; if
notice is so directed to be given, the court may determine which one or
more of the parties to the action shall bear the expense of giving the
same, in such amount as the court shall determine and find to be
reasonable in the circumstances, and the amount of such expense shall be
awarded as special costs of the action and recoverable in the same
manner as statutory taxable costs.
5. If the action on behalf of the limited partnership was successful,
in whole or in part, or if anything was received by the plaintiff or
plaintiffs or a claimant or claimants as a result of a judgment,
compromise or settlement of an action or claim, the court may award the
plaintiff or plaintiffs, claimant or claimants, reasonable expenses,
including reasonable attorneys' fees, and shall direct him or them to
account to the partnership for the remainder of the proceeds so received
by him or them. This paragraph shall not apply to any judgment rendered
for the benefit of injured limited, additional or substituted limited
partners only and limited to a recovery of the loss or damage sustained
by them.
§ 115-b. Security for expenses in limited partners' derivative action
brought in the right of the limited partnership to procure a judgment in
its favor. In any action specified in section one hundred fifteen-a of
this article, unless the contributions of or allocable to plaintiff or
plaintiffs to partnership property amount to five percent or more of the
contributions of all limited partners, in their status as limited
partners, or such contributions of or allocable to such plaintiff or
plaintiffs have a fair value in excess of fifty thousand dollars, the
limited partnership in whose right such action is brought shall be
entitled at any stage of the proceedings before final judgment to
require the plaintiff or plaintiffs to give security for the reasonable
expenses, including attorneys' fees, which may be incurred by it in
connection with such action and by the other parties defendant in
connection therewith for which the limited partnership may become liable
under this article under any contract or otherwise under law, to which
the limited partnership shall have recourse in such amount as the court
having jurisdiction of such action shall determine upon the termination
of such action. The amount of such security may thereafter from time to
time be increased or decreased in the discretion of the court having
jurisdiction of such action upon showing that the security provided has
or may become inadequate or excessive.
§ 115-c. Indemnification of general partner in actions in the right of
a limited partnership to procure a judgment in its favor. 1. No
provision made to indemnify general partners for the defense of any
action brought pursuant to section one hundred fifteen-a of this
article, whether contained in the articles of limited partnership,
agreement or otherwise, nor any award of indemnification by a court,
shall be valid unless consistent with this section.
2. A limited partnership may indemnify any general partner, made a
party to an action in the right of a limited partnership to procure a
judgment in its favor by reason of the fact that he, his testator or
intestate was a general partner in the limited partnership, against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense of such action, or in
connection with an appeal therein, except in relation to matters as to
which such general partner is adjudged to have breached his duty to the
limited partnership.
3. The indemnification authorized under subdivision two of this
section shall in no case include
(a) amounts paid in settling or otherwise disposing of a threatened
action, or pending action with or without court approval, or
(b) expenses incurred in defending a threatened action, or pending
action which is settled or otherwise disposed of without court approval.
4. A general partner who has been wholly successful on the merits or
otherwise in the defense of an action of the character described in
subdivision two of this section shall be entitled to indemnification as
authorized in subdivisions two and three of this section.
5. Except as provided in subdivision four of this section, any
indemnification under subdivision two, unless ordered by a court under
subdivision six, shall be made by the limited partnership only if
authorized in the specific case
(a) by a majority of all the general partners, excluding any partners
who are parties to such action, upon a finding that the general partner
to be indemnified has met the standard of conduct set forth in
subdivision two, or,
(b) if a majority of general partners who are not parties to such
action is not obtainable with due diligence by the general partner or
partners, upon the opinion of independent legal counsel that
indemnification is proper in the circumstances because the standard of
conduct set forth in subdivision two has been met by the general partner
to be indemnified.
6. (a) Notwithstanding the failure of the limited partnership to
provide indemnification, and despite any contrary determination by the
general partners, indemnification shall be awarded by a court to the
extent authorized under subdivisions two and four of this section.
Application therefor may be made, in every case, either
(i) in the action in which the expenses were incurred or other amounts
were paid, or
(ii) to the supreme court in a separate proceeding, in which case the
application shall set forth the disposition of any previous application
made to any court for the same relief and also reasonable cause for the
failure to make application for such relief in the action in which the
expenses were incurred or other amounts were paid.
(b) The application shall be made in such manner and form as may be
required by the applicable rules of court or, in the absence thereof, by
direction of a court to which it is made. Such application shall be on
notice to the limited partnership, given through a general partner, if
any, other than the general partner making the application. The court
may also direct that notice be given at the expense of the limited
partnership, to the limited partners and such other persons as it may
designate in such manner as it may require. When there is no general
partner other than those making the application, notice shall be given,
as herein provided, to the limited partners.
(c) When indemnification is sought by judicial action, the court may
allow a general partner such reasonable expenses, including attorneys'
fees, during the pendency of the litigation as are necessary in
connection with his defense therein, if the court shall find that the
defendant has by his pleadings or during the course of the litigation
raised genuine issues of fact or law.
7. Expenses incurred in defending an action of the character described
in subdivision two of this section may be paid voluntarily by the
limited partnership in advance of the final disposition of such action
if authorized under subdivision five of this section.
8. All expenses incurred in defending an action which are allowed by
the court under subdivisions six or seven of this section shall be
repaid in case the general partner receiving such advancement or
allowance is ultimately found, under the procedure set forth in this
section, not to be entitled to indemnification or, where indemnification
is granted, to the extent the expenses so advanced by the general
partnership or allowed by the court exceed the indemnification to which
he is entitled.
9. No indemnification, advancement or allowance shall be made under
this section in any circumstance where it appears
(a) that indemnification would be inconsistent with a provision of the
certificate of limited partnership, agreement, partnership resolution or
other proper partnership action, in effect at the time of accrual of the
alleged cause of action asserted in the threatened or pending action in
which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
(b) if there has been a settlement approved by the court, that the
indemnification would be inconsistent with any condition with respect to
indemnification expressly imposed by the court in approving the
settlement.
§ 116. Short title. This article shall be known and may be cited as
the uniform limited partnership act.
§ 117. Rules of construction. (1) The rule that statutes in
derogation of the common law are to be strictly construed shall have no
application to this article.
(2) This article shall be so interpreted and construed as to effect
its general purpose.
(3) This article shall not be so construed as to impair the
obligations of any contract existing when this article takes effect, nor
to affect any action or proceeding begun or right accrued before this
article takes effect.
§ 118. Rules for cases not covered. In any case not provided for in
this article the rules of law and equity, including the law merchant,
shall govern.
§ 119. Existing limited partnerships. (1) A limited partnership
formed under any statute of this state prior to the adoption of this
article may become a limited partnership under this article by complying
with the provisions of section ninety-one, provided the certificate sets
forth
(a) The amount of the original contribution of each limited partner,
and the time when the contribution was made, and
(b) That the property of the partnership exceeds the amount sufficient
to discharge its liabilities to persons not claiming as general or
limited partners by an amount greater than the sum of the contributions
of its limited partners.
(2) The provisions of this article, or the repeal of article eight of
this chapter, shall not affect or impair any act done or right accrued,
acquired or established by a limited partnership formed under any
statute of this state prior to its adoption, until or unless it becomes
a limited partnership in accordance with the provisions of this article,
and the same may be conducted in the same manner and to the same extent
as if this article had not been passed.
§ 121-101. Definitions. As used in this article, unless the context
otherwise requires:
(a) "Certificate of limited partnership" means the certificate
referred to in section 121-201 of this article, and the certificate as
amended.
(a-1) "Affidavit of publication" means the affidavit of the printer or
publisher of a newspaper in which a publication pursuant to sections
121-201 and 121-902 of this article 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 Partnership 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 partnership) 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.
(a-2) "Certificate of publication" means a certificate presented on
behalf of the applicable limited partnership to the department of state
together with the affidavits of publication pursuant to section 121-201
or 121-902 of this article. The certificate of publication shall be in a
form substantially as follows:
"Certificate of Publication of ______ (name of limited partnership)
Under Section _______ (Specify applicable section) of the Partnership
Law
The undersigned is the _________ (title) of ___________ (name of
limited partnership). The published notices described in the annexed
affidavits of publication contain all of the information required by the
above-mentioned section of the partnership law. The newspapers described
in such affidavits of publication satisfy the requirements set forth in
the partnership 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"
(b) "Contribution" means any cash, property, services rendered, or a
promissory note or other binding obligation to contribute cash or
property or to render services, which a partner contributes to a limited
partnership in his capacity as a partner.
(c) "Distribution" means the transfer of property by a limited
partnership to one or more of its partners in his capacity as a partner.
(d) "Event of withdrawal of a general partner" means an event that
causes a person to cease to be a general partner as provided in section
121-402 of this article.
(e) "Foreign limited partnership" means a partnership formed under the
laws of any jurisdiction, including any foreign country, other than the
laws of this state and having as partners one or more general partners
and one or more limited partners.
(f) "General partner" means a person who has been admitted to a
limited partnership as a general partner in accordance with the
partnership agreement and, if required by the law of the jurisdiction
under which the limited partnership or foreign limited partnership, as
the case may be, is organized, is so named in the certificate of limited
partnership or similar instrument.
(g) "Limited partner" means a person who has been admitted to a
limited partnership as a limited partner in accordance with the
partnership agreement or as otherwise provided by the law of the
jurisdiction under which the limited partnership or foreign limited
partnership, as the case may be, is organized.
(h) "Limited partnership" and "domestic limited partnership" mean,
unless the context otherwise requires, a partnership (i) formed by two
or more persons pursuant to this article or which complies with
subdivision (a) of section 121-1202 of this article and (ii) having one
or more general partners and one or more limited partners.
(i) "Majority in interest of the limited partners" and "two-thirds in
interest of the limited partners" mean limited partners whose aggregate
share of the current profits of the partnership constitute more than
one-half or two-thirds, respectively, of the aggregate shares of all
limited partners.
(j) "Office of limited partnership" means the office of the location
of which is stated in the certificate of limited partnership of a
domestic limited partnership, or in the application for authority of a
foreign limited partnership or any amendment thereof. Such office need
not be a place where business activities are conducted by such limited
partnership.
(j-1) "Other business entity" means any person other than a natural
person, general partnership (including any registered limited liability
partnership or registered foreign limited liability partnership) or
domestic limited partnership.
(k) "Partner" means a limited or general partner.
(l) "Partnership agreement" means any written agreement of the
partners as to the affairs of a limited partnership and the conduct of
its business.
(m) "Partnership interest" means: (i) a partner's share of the profits
and losses of a limited partnership; and (ii) a partner's right to
receive distributions.
(n) "Person" means a natural person, partnership, limited partnership
(domestic or foreign), limited liability company (domestic or foreign),
trust, estate, custodian, nominee, association, corporation or any other
individual or entity in its own or any representative capacity.
(o) "Process" means judicial process and all orders, demands, notices
or other papers required or permitted by law to be personally served on
a limited partnership (domestic or foreign), for the purpose of
acquiring jurisdiction of such limited partnership 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.
(p) "State" means a state, territory, or possession of the United
States, the District of Columbia, or the Commonwealth of Puerto Rico.
§ 121-102. Partnership name. The name of each limited partnership as
set forth in its certificate of limited partnership:
(a) (1) shall contain without abbreviation the words "Limited
Partnership" or the abbreviation "L.P.";
(2) (A) shall be such as to distinguish it from the name of (i) any
limited partnership as defined in subdivision (h) of section 121-101 of
this article, or (ii) any foreign limited partnership authorized to do
business as a foreign limited partnership in this state;
(B) 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 liability companies, (v) the names of authorized
foreign limited liability companies, or (vi) the fictitious names of
authorized foreign limited liability companies, 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 liability companies, including fictitious names of
authorized foreign limited liability companies, in the department of
state, or names the rights to which are reserved; provided, however,
that no limited partnership that was formed prior to the effective date
of this subparagraph and no foreign limited partnership 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 liability company or from any
name the right to which is reserved by or on behalf of any domestic or
foreign corporation or limited liability company;
(3)(A) may not contain the following phrases or any abbreviation or
derivative thereof:
board of trade state trooper
chamber of commerce tenant relocation
community renewal urban development
state police urban relocation
Every certificate of limited partnership in which the name of the
proposed limited partnership includes the 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.
(B) may not contain the following words, or any abbreviation or
derivative thereof:
acceptance indemnity
annuity insurance
assurance investment
bank lawyer
benefit loan
bond mortgage
casualty savings
doctor surety
endowment title
fidelity trust
finance underwriter
guaranty
unless the approval of the superintendent of financial services is
attached to the certificate of limited partnership; or unless the word
"doctor" or "lawyer" or an abbreviation or derivative thereof is used in
a context which clearly denotes a purpose other than the practice of law
or medicine.
(C) shall not, unless the approval of the state department of social
services is attached to the certificate of limited partnership or
application for authority or amendment thereof, 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 partnership name proposed will not tend to
mislead or confuse the public into believing that the limited
partnership is organized for charitable or nonprofit purposes related to
the blind or the handicapped.
(D) shall not, unless the approval of the attorney general is attached
to the certificate of limited partnership or application for authority
or amendment thereof, 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
proposed limited partnership name would falsely imply that the limited
partnership conducts its business at a place where trade is carried on
in securities or commodities by brokers, dealers or merchants.
(b) shall, unless the limited partnership or foreign limited
partnership shall have complied with the provisions of section one
hundred thirty of the general business law be the name used by the
limited partnership in its conduct of business.
(c) notwithstanding paragraphs one and two of subdivision (a) of this
section, a limited partnership organized under the laws of this state
prior to the effective date of this article which shall file a
certificate under section 121-1202 of this article within one year of
the effective date of this article may file under its name as provided
in its certificate of limited partnership on the effective date of this
article and thereafter may continue to use such name and a foreign
limited partnership which has been authorized to do business in this
state prior to the effective date of this article may continue to use
the name under which it has heretofore done business in this state.
§ 121-103. Reservation of partnership name. (a) Subject to section
121-102 of this article, the exclusive right to the use of a name may be
reserved by:
(1) Any person intending to organize a domestic limited partnership
under this article;
(2) Any domestic limited partnership or any foreign limited
partnership authorized to do business in this state intending to change
its name;
(3) Any foreign limited partnership intending to apply for authority
to do business in this state and to adopt that name; and
(4) Any person intending to organize a foreign limited partnership and
intending to have it apply for authority to do business in this state.
(b) A fictitious name for use pursuant to section 121-902 of this
article may be reserved by:
(1) Any foreign limited partnership intending to apply for authority
to do business in this state pursuant to subdivision (a) of section
121-902 of this article.
(2) Any authorized foreign limited partnership intending to change its
fictitious name under which it does business in this state.
(3) Any authorized foreign limited partnership which has changed its
name in its jurisdiction, such new name not being available in this
state.
(c) Application to reserve a limited partnership 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 partnership. If the name is available for
limited partnership use, 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 121-102 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 certificate of limited partnership or the application for authority
when either is delivered to the department of state.
(d) 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 or agent delivered to the
department of state, to be filed before expiration of the reservation
period then in effect. Such request shall have attached to it the
certificate of reservation of name. No more than two such extensions
shall be granted.
§ 121-104. Statutory designation of secretary of state as agent for
service of process. (a) The secretary of state shall be the agent for
every domestic limited partnership which has filed with the secretary of
state a certificate making such designation and every foreign limited
partnership upon whom process may be served pursuant to this article.
(b) No domestic or foreign limited partnership may be organized or
authorized to do business in this state under this article unless in its
certificate of limited partnership or application for authority it
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 as agent of a domestic
limited partnership or foreign limited partnership shall continue until
the filing of a certificate or other instrument under this article
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 against such domestic limited
partnership or foreign limited partnership has been electronically
served upon him or her as agent of a domestic limited partnership or
foreign limited partnership, shall continue until the filing of a
certificate or other instrument under this chapter changing or deleting
the email address.
(d) The change authorized by subdivision (c) of this section may be
accomplished by filing a certificate pursuant to this chapter, which
shall be executed by a general partner.
§ 121-104-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 partnership or foreign limited
partnership as its address for process may resign. A certificate
entitled "Certificate of Resignation for Receipt of Process under
Section 121-104-A of the Revised Limited Partnership Act" shall be
signed by such party and delivered to the department of state. It shall
set forth:
(1) the name of the limited partnership 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
partnership 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 partnership, 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 partnership, if other than the party filing the certificate of
resignation, for receipt of process, or if the resigning limited
partnership has no registered agent, then to the last address of the
designated limited partnership, 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 partnership 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
partnership, specifying what efforts were made.
(4) that the designated limited partnership is required to deliver to
the department of state a certificate of amendment or change providing
for the designation by the limited partnership 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 partnership to file a
certificate of amendment or change providing for the designation by the
limited partnership 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 change providing for a new address by a designating limited
partnership shall annul the suspension and its authority to do business
in this state shall be restored and continued as if no suspension had
occured.
(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 partnership 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 partnership 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 this state to such limited
partnership by a person and in a 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 partnership
by registered or certified mail with return receipt requested to the
last address of such limited partnership 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 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.
(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
partnership, 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 partnership, 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 partnership 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 partnership 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 service process
in any other manner permitted by law.
§ 121-105. Registered agent. (a) In addition to the designation of the
secretary of state, each limited partnership or authorized foreign
limited partnership may designate a registered agent upon whom process
against the limited partnership may be served. The agent must be (i) a
natural person who is a resident of this state or has a business address
in this state, or (ii) a domestic corporation or a foreign corporation
authorized to do business in this state.
(c) The registered agent of a limited partnership 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 designating limited partnership) under subdivision (c) of
section 121-105 of the Revised Limited Partnership Act" which shall be
executed by such registered agent. It shall set forth:
(1) The name of the limited partnership, and if it has been changed,
the name under which it was organized. A foreign limited partnership
must set forth its name and the fictitious name the foreign limited
partnership has agreed to use in this state pursuant to section 121-902
of this article.
(2) The date the certificate of limited partnership or certificate of
application for authority of the limited partnership was filed by the
department of state.
(3) That he resigns as registered agent for the limited partnership.
(4) That he has sent a copy of the certificate of resignation by
registered mail to the limited partnership at the post office address on
file in the department of state specified for the mailing of process or
if such address is the address of the registered agent, then to the
office of the designating limited partnership and the jurisdiction of
its organization.
(d) The designation of a registered agent shall terminate thirty days
after the filing by 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 partnership within
the thirty days or thereafter.
§ 121-106. Records. (a) Each domestic limited partnership shall
maintain the following records, which may, but need not, be maintained
in this state:
(1) a current list of the full name and last known mailing address of
each partner set forth in alphabetical order together with the
contribution and the share in profits and losses of each partner or
information from which such share can be readily derived;
(2) a copy of the certificate of limited partnership and all
amendments thereto, together with executed copies of any powers of
attorney pursuant to which any certificate or amendment has been
executed;
(3) a copy of the partnership agreement, any amendments thereto and
any amended and restated partnership agreements; and
(4) a copy of the limited partnership's federal, state, and local
income tax or information returns and reports, if any, for the three
most recent fiscal years.
(b) Any partner may, subject to reasonable standards as may be set
forth in the partnership agreement or otherwise established by the
general partners, inspect and copy at his own expense for any purpose
reasonably related to the partner's interest as a partner the records
referred to in subdivision (a) of this section, any financial statements
maintained by the limited partnership for the three most recent fiscal
years and other information regarding the affairs of the limited
partnership as is just and reasonable.
§ 121-107. Nature of business. A limited partnership may carry on any
business that a partnership without limited partners may carry on except
as prohibited by law.
§ 121-108. Business transactions of partner with the partnership.
Except as may be provided in the partnership agreement, a partner 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 partnership, and, subject to other applicable law, has
the same rights and obligations with respect thereto as a person who is
not a partner.
§ 121-109. Service of process on limited partnerships. (a) Service of
process on the secretary of state as agent of a domestic or authorized
foreign limited partnership 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) By personally delivering to and leaving with him or her 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.
The service on the limited partnership is 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, addressed to the limited
partnership 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 partnership
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 as agent of such
domestic or authorized foreign limited partnership. Service of process
on such limited partnership or authorized foreign limited partnership
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 has been served to such limited
partnership 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 partnership or authorized foreign limited partnership.
(b) 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 partnership
not authorized to do business in this state is subject to a like
jurisdiction. In any such case, process against such foreign limited
partnership 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. Service of 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 paragraph shall be
available at no extra cost to the consumer. (1) 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. (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. Such service shall be sufficient if notice thereof
and a copy of the process are:
(1) Delivered personally without this state to such foreign limited
partnership 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
partnership by registered mail with 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 creation, or if no
such address is specified, to its registered or other office there
specified, or if no such office is specified, to the last address of
such foreign limited partnership known to the plaintiff.
(3) 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.
(4) 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 partnership, 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
partnership 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 partnership 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 partnership refusing to accept such registered mail
shall be charged with knowledge of the contents thereof.
(5) Service made as provided in this section shall have the same force
as personal service made within this state.
(c) The secretary of state shall keep a record of all process served
upon him under this section and shall record therein the date of such
service and his action with reference thereto.
(d) Nothing contained in this section shall limit or affect the right
to serve any process required or permitted by law to be served upon the
limited partnership in any other manner now or hereafter permitted by
law or applicable rules of procedure.
§ 121-109-a. Electronic service of process. The secretary of state
shall advise any partnership subject to the laws of this article 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 partnership subject to the laws
of this chapter will continue to receive service of process by mail
unless such partnership 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
partnership at any time and, thereafter, service by mail will resume.
§ 121-110. The partnership agreement. (a) The partnership agreement
shall be signed by all general partners, in person or by attorneys in
fact, and may, but need not, be signed by the limited partners.
(b) A limited partnership shall have a written partnership agreement.
Except as provided in sections 121-702 and 121-705 of this article, no
person shall have any rights, or be subject to the liabilities, of a
general partner who has not signed the partnership agreement in person
or by attorney in fact.
(c) The partnership agreement of a limited partnership may be amended
from time to time as provided therein; provided, however, that, except
as may be provided otherwise in the partnership agreement, without the
written consent of each partner adversely affected thereby, no amendment
of the partnership agreement shall be made which (i) increases the
obligations of any limited partner 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 partner, (iv) alters, except as provided in
subdivision (a) of section 121-302 of this article, the voting or other
rights of any limited partner, (v) allows the obligation of a partner to
make a contribution to be compromised by consent of fewer than all
partners or (vi) alters the procedures for amendment of the partnership
agreement.
§ 121-201. Certificate of limited partnership. (a) In order to form a
limited partnership the general partners shall execute a partnership
agreement, and a certificate of limited partnership shall be executed in
accordance with section 121-204 of this article. The certificate,
entitled "Certificate of limited partnership of .......................
(name of limited partnership) under section 121-201 of the Revised
Limited Partnership Act," shall be filed with the department of state in
accordance with section 121-206 of this article and shall set forth:
(1) the name of the limited partnership;
(2) the county within this state, in which the office of the limited
partnership is to be located;
(3) a designation of the secretary of state as agent of the limited
partnership 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 partnership 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;
(4) if the limited partnership is to have a registered agent, his name
and address within this state and a statement that the registered agent
is to be the agent of the limited partnership upon whom process against
it may be served;
(5) the name and the business or residence street address of each
general partner;
(6) the latest date upon which the limited partnership is to dissolve;
and
(7) any other matters the general partners determine to include
therein.
(b) A limited partnership is formed at the time of the filing of the
initial certificate of limited partnership with the department of state
or at any later time not to exceed sixty days from the date of filing
specified in the certificate of limited partnership. The filing of the
certificate shall, in the absence of actual fraud, be conclusive
evidence of the formation of the limited partnership as of the time of
filing or effective date if later, except in an action or special
proceeding brought by the attorney general.
(c) (i) Within one hundred twenty days after the filing of the initial
certificate, 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
partnership 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 limited partnership 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 partnership 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 limited partnership; (2) the date of filing
of the certificate of limited partnership with the department of state;
(3) the county within this state, in which the office of the limited
partnership 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 partnership 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
partnership 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 partnership upon whom process against it may be
served; (6) a statement that the names and the business or residence
street address of each general partner is available from the secretary
of state; (7) the latest date upon which the limited partnership is to
dissolve; and (8) the character or purpose of the business of such
partnership. 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 partnership may complete the remaining publications of the
original copy or notice, and the limited partnership 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 its formation, proof of such publication, consisting of the
certificate of publication of the limited partnership with the
affidavits of publication of the newspapers annexed thereto has not been
filed with the department of state, the authority of such limited
partnership 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 partnership 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 partnership'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 limited partnership,
or any right or remedy of any other party under or by virtue of any
contract, act or omission of such limited partnership, 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 partnership to
defend any action or special proceeding in this state, or result in any
partner or agent of such limited partnership becoming liable for the
contractual obligations or other liabilities of the limited partnership.
If, at any time following the suspension of a limited partnership's
authority to carry on, conduct or transact business in this state
pursuant to this paragraph, such limited partnership 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 limited partnership with the
affidavits of publication of the newspapers annexed thereto, to be filed
with the department of state, such suspension of such limited
partnership's authority to carry on, conduct or transact business shall
be annulled.
(ii)(1) A limited partnership which was formed prior to the effective
date of this paragraph and which 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
limited partnership which was formed 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 certificate 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 limited partnership with the affidavits of publication of the
newspapers annexed thereto, with the department of state.
(3) If a limited partnership 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 limited partnership 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
limited partnership'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
limited partnership, or any right or remedy of any other party under or
by virtue of any contract, act or omission of such limited partnership,
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 partnership to defend any action or special proceeding in this
state, or result in any partner or agent of such limited partnership
becoming liable for the contractual obligations or other liabilities of
the limited partnership.
(5) If, at any time following the suspension of a limited
partnership's authority to carry on, conduct or transact business in
this state, pursuant to subparagraph three of this paragraph, such
limited partnership 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 limited partnership with the
affidavits of publication of the newspapers annexed thereto, to be filed
with the department of state, such suspension of such limited
partnership's authority to carry on, conduct or transact business shall
be annulled.
(6) For the purposes of this paragraph, a limited partnership which
was formed 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 (A) the limited
partnership was formed on or after January first, nineteen hundred
ninety-nine and prior to such effective date and the limited partnership
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 (B) the limited partnership was formed prior to January first,
nineteen hundred ninety-nine, without regard to whether the limited
partnership 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.
§ 121-202. Amendment of the certificate of limited partnership. (a) A
certificate of limited partnership is amended by filing with the
department of state a certificate of amendment thereto entitled
"Certificate of amendment of the certificate of limited partnership
of... (name of limited partnership) under section 121-202 of the Revised
Limited Partnership Act," and executed in accordance with section
121-204 of this article. The certificate of amendment shall set forth:
(1) The name of the limited partnership and, if it has been changed,
the name under which it was formed;
(2) The date of filing its certificate of limited partnership;
(3) Each amendment effected thereby, setting forth the subject matter
of each provision of the certificate of limited partnership which is to
be amended or eliminated and the full text of the provision or
provisions, if any, which are to be substituted or added; and
(4) If the amendment reflects the admission or withdrawal of one or
more general partners, the name and business or residence street address
of such general partner or partners and the date or dates of admission
or withdrawal.
(b) No later than ninety days after the happening of any of the
following events, an amendment to a certificate of limited partnership
reflecting the occurrence of the event or events shall be filed by a
general partner:
(1) the admission of a general partner;
(2) the withdrawal of a general partner;
(3) the continuation of the partnership under section 121-801 of this
article after an event of withdrawal of a general partner; or
(4) a change in the name of the limited partnership, or a change in
the post office address to which the secretary of state shall mail a
copy of any process against the limited partnership served on him or
her, a change in the email address to which the secretary of state shall
email a notice of the fact that process against the limited partnership
has been electronically served upon him or her, or a change in the name
or address of the registered agent, if such change is made other than
pursuant to section 121-104 or 121-105 of this article.
(c) A general partner who becomes aware that any statement in a
certificate of limited partnership was false in any material respect
when made or that a matter described has changed, making the certificate
inaccurate in any material respect, shall amend the certificate within
ninety days of becoming aware of such fact.
(d) A certificate of limited partnership may be amended at any time
for any other proper purpose which the general partners may determine.
(e) Unless otherwise provided in this article, a certificate of
amendment shall be effective at the time of its filing with the
department of state.
§ 121-202-A. Certificate of change. (a) A certificate of limited
partnership may be changed by filing with the department of state a
certificate of change entitled "Certificate of Change of ..... (name of
limited partnership) under Section 121-202-A of the Revised Limited
Partnership Act" and shall be signed and delivered to the department of
state. A certificate of change may (i) specify or change the location of
the limited partnership's office; (ii) specify or change the post office
address to which the secretary of state shall mail a copy of process
against the limited partnership served upon him; (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 partnership has
been electronically served upon him or her; and (iv) make, revoke or
change the designation of a registered agent, or to specify or change
the address of its registered agent. It shall set forth:
(1) the name of the limited partnership, and if it has been changed,
the name under which it was formed;
(2) the date its certificate of limited partnership 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 limited partnership served upon him or her, 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 partnership shall 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 partnership 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 partnership has not objected thereto; and that the party signing
the certificate is the agent of such limited partnership to whose
address the secretary of state is required to mail copies of process,
and/or the agent 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, and/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 partnership in whose behalf such certificate
is filed.
§ 121-203. Cancellation of certificate. (a) Within ninety days
following the dissolution and the commencement of winding up of the
limited partnership, or at any other time there are no limited partners,
a certificate of cancellation shall be filed with the department of
state entitled, "Certificate of cancellation of... (name of limited
partnership) under section 121-203 of the Revised Limited Partnership
Act" and executed in accordance with section 121-204 of this article.
The certificate of cancellation shall set forth:
(1) the name of the limited partnership; and if it has been changed,
the name under which it was formed;
(2) the date of filing of its certificate of limited partnership and
each subsequent amendment thereto;
(3) the event giving rise to the filing of the certificate; and
(4) any other information the persons filing the certificate
determine.
(b) The cancellation of the certificate of limited partnership is
effective at the time of the filing of the certificate of cancellation.
(c) The cancellation of the certificate of limited partnership shall
not affect the liability of the limited partners during the period of
winding up and termination of the partnership.
§ 121-204. Execution of certificates. (a) Each certificate required by
this article to be filed with the department of state shall be executed
in the following manner:
(1) an initial certificate of limited partnership must be signed by
all general partners named therein;
(2) a certificate of amendment must be signed by at least one general
partner and by each other general partner designated in the certificate
of amendment as a new general partner;
(3) a certificate of cancellation must be signed by all general
partners or, if there is no general partner, unless otherwise provided
in the partnership agreement, by a majority in interest of the limited
partners; and
(4) all other certificates must be signed by at least one general
partner.
(b) Any person may sign any certificate by an attorney in fact. Powers
of attorney relating to the signing of a certificate by an attorney in
fact need not be filed with the department of state nor provided as
evidence of authority by the person filing, but must be retained among
the records of the partnership.
(c) Each certificate must be signed.
(d) Each certificate must include the name and capacity of each
signer.
§ 121-205. Execution, amendment or cancellation by judicial act. (a)
If a person required by section 121-204 of this article to execute a
certificate fails or refuses to do so, any partner, and any permitted
assignee of a partnership interest, who is adversely affected by the
failure or refusal may petition the supreme court in the judicial
district in which the office of the limited partnership is located to
direct the execution of the certificate. If the court finds that the
certificate should be executed and that such person has failed or
refused to execute the certificate, it shall order such person to file
an appropriate certificate.
(b) If a person contractually obligated to execute as a limited
partner a partnership agreement of an existing partnership, or any
amendment thereto, fails or refuses to do so, any partner, and any
assignee of a partnership interest, who is adversely affected by the
failure or refusal may petition the supreme court in the judicial
district referred to in subdivision (a) of this section to direct the
execution of the partnership agreement or amendment. If the court finds
that such person has breached a contractual obligation binding upon him
to execute the agreement or amendment, it shall enter an order granting
appropriate relief.
§ 121-206. Filing with the department of state. A signed certificate
of limited partnership and any signed certificates of amendment or other
certificates filed pursuant to this article or of any judicial decree of
amendment or cancellation shall be delivered to the department of state.
If the instrument which 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.
§ 121-207. Liability for false statement in certificate. (a) If any
certificate of limited partnership, certificate of amendment, or other
certificate filed pursuant to this article 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 certificate, or causes another to
execute it on his behalf, and knew, and any general partner who knew of
the filing of such 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 certificate was executed; and
(2) any general partner who thereafter knows of the filing of such
certificate and who knows or should have known with the exercise of
reasonable care and diligence that any arrangement or other fact
described in the certificate has changed, making the statement false in
any material respect, if that general partner had ninety days to amend
or cancel the certificate, or to file a petition for its amendment or
cancellation before the statement was relied upon.
(b) No person shall have any liability for failing to cause the
amendment or cancellation of a certificate to be filed or failing to
file a petition for its amendment or cancellation, if the certificate or
petition is filed within ninety days of the time when that person knew
or should have known that the statement in the certificate was false in
any material respect.
§ 121-208. Restated certificate of limited partnership. (a) A limited
partnership may restate in a single certificate the text of its
certificate of limited partnership, without making any amendment
thereby. Alternatively, a limited partnership may restate in a single
certificate the text of its certificate of limited partnership and as
amended thereby to effect any one or more of the amendments authorized
by this article.
(b) If the restated certificate of limited partnership merely restates
and integrates but does not amend or further amend the certificate of
limited partnership, it shall be executed by a general partner. If the
restated certificate also amends or further amends the certificate of
limited partnership, it shall be executed in accordance with section
121-204 of this article.
(c) The restated certificate shall be filed with the department of
state in accordance with section 121-206 of this article and shall set
forth:
(1) the name of the limited partnership and, if it has been changed,
the name under which it was formed;
(2) the date of filing of its certificate of limited partnership;
(3) if the restated certificate restates the text of the certificate
of limited partnership without making any amendments, then a statement
that the text of the certificate of limited partnership is thereby
restated without amendment to read as therein set forth in full; or
(4) if the restated certificate restates the text of the certificate
of limited partnership, and is amended thereby, then a statement that
the certificate of limited partnership is amended to effect one or more
of the amendments authorized by this article, specifying each such
amendment and that the text of the certificate of limited partnership is
thereby restated as amended to read as therein set forth in full.
(d) Any amendments effected in connection with the restatement of the
certificate of limited partnership shall be subject to any other
provision of this article which would apply if a separate certificate of
amendment were filed to effect such amendment.
§ 121-301. Admission of limited partners. (a) A person becomes a
limited partner on the later of:
(1) the effective date of the original certificate of limited
partnership; or
(2) the date as of which the person becomes a limited partner pursuant
to the partnership agreement; provided, however, that if such date is
not ascertainable, the date stated in the records of the limited
partnership.
(b) After the effective date of a limited partnership's original
certificate of limited partnership, a person may be admitted as a
limited partner:
(1) in the case of a person acquiring a partnership interest directly
from the limited partnership, upon compliance with the partnership
agreement or, if the partnership agreement does not so provide, upon the
written consent of all partners; and
(2) in the case of an assignee of a partnership interest of a partner
who has the power, as provided in section 121-704 of this article, to
grant the assignee the right to become a limited partner, upon the
exercise of that power and compliance with any conditions limiting the
grant or exercise of the power.
§ 121-302. Classes and voting by limited partners. (a) A partnership
agreement may provide for classes or groups of limited partners having
such relative rights and powers as the partnership agreement may
provide, and may make provision for the future creation in the manner
provided in the partnership agreement of additional classes of limited
partners having such relative rights and powers as may from time to time
be established pursuant to the partnership agreement including rights
and duties senior to existing classes of limited partners. The
partnership agreement may grant to or withhold from all or one or more
classes of limited partners the right to vote, on a per capita, class or
other basis, upon any matter.
(b) A partnership agreement which grants a right to vote 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 limited partners,
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.
§ 121-303. Liability to third parties. (a) Except as provided in
subdivision (d) of this section, a limited partner is not liable for the
contractual obligations and other liabilities of a limited partnership
unless he is also a general partner or, in addition to the exercise of
his rights and powers as a limited partner, he participates in the
control of the business. However, if the limited partner does
participate in the control of the business, he is liable only to persons
who transact business with the limited partnership reasonably believing,
based upon the limited partner's conduct, that the limited partner is a
general partner.
(b) A limited partner does not participate in the control of the
business within the meaning of subdivision (a) of this section by virtue
of doing one or more of the following:
(1) being a contractor for or transacting business with, including
being a contractor for, or an agent or employee of the limited
partnership or of a general partner or an officer, director or
shareholder of a corporate general partner, or a member, manager or
agent of a limited liability company that is a general partner of the
limited partnership, or a partner of a partnership that is a general
partner of the limited partnership, or a trustee, administrator,
executor, custodian or other fiduciary or beneficiary of an estate or
trust which is a general partner, or a trustee, officer, advisor,
shareholder or beneficiary of a business trust which is a general
partner, or acting in such capacity;
(2) consulting with and advising or rendering professional services to
a general partner with respect to any matter, including the business of
the limited partnership;
(3) acting as surety or endorser for the limited partnership, or
guaranteeing or providing security for or lending money to or assuming
one or more debts of the limited partnership;
(4) approving or disapproving an amendment to the partnership
agreement, or calling, requesting, or participating in any meeting of
general and limited partners or limited partners;
(5) taking any action to bring, prosecute, or terminate any derivative
action brought in the right of the limited partnership;
(6) proposing, approving, disapproving, or voting on any one or more
of the following matters:
(A) the amendment of the partnership agreement or certificate of
limited partnership;
(B) the dissolution and winding up of the limited partnership;
(C) the sale, exchange, lease, mortgage, assignment, pledge, or other
transfer of, or granting of a security interest in, any asset or assets
of the limited partnership;
(D) the merger or consolidation of the limited partnership or election
to continue the business of the limited partnership;
(E) the incurrence, renewal, refinancing or payment or other discharge
of indebtedness by the limited partnership;
(F) a change in the nature of the business;
(G) the admission or removal of a partner;
(H) a transaction or other matter involving an actual or potential
conflict of interest;
(I) in respect of a limited partnership which is registered as an
investment company under an act of Congress entitled Investment Company
Act of 1940, any matter required by said Investment Company Act of 1940,
or the rules and regulations promulgated thereunder, to be approved by
holders of beneficial interests in an investment company;
(J) such other matters as are required for submission to limited
partners by federal or state securities laws or rules or regulations
thereunder, or rules of self-regulatory bodies governing the trading of
limited partnership interests;
(K) the indemnification of any partner or other person; or
(L) such other matters as are stated in the partnership agreement to
be subject to approval, disapproval or vote by the limited partners;
(7) consulting with or advising, or being an officer, director,
shareholder, partner, member, manager, agent or employee of, or being a
fiduciary for, any person in which the limited partnership has an
interest;
(8) winding up the limited partnership pursuant to section 121-803 of
this article; or
(9) exercising any right or power permitted to limited partners under
this article and not specifically enumerated in this subdivision.
(c) The enumeration in subdivision (b) of this section does not mean
that the possession or exercise of any other powers by a limited partner
constitutes participation by him in the control of the business of the
limited partnership.
(d) A limited partner who expressly consents in writing to his name
being used in the name of the limited partnership is liable to creditors
who extend credit to the limited partnership without actual knowledge
that the limited partner is not a general partner.
(e) A limited partner does not participate in the control of the
business within the meaning of subdivision (a) of this section
regardless of the nature, extent, scope, number or frequency of the
limited partner's possessing or, regardless of whether or not the
limited partner has the rights or powers, exercising or attempting to
exercise one or more of the rights or powers or having or, regardless of
whether or not the limited partner has the rights or powers, acting or
attempting to act in one or more of the capacities which are permitted
under this section.
§ 121-304. Person erroneously believing himself a limited partner. (a)
Except as provided in subdivision (b) of this section, a person who
makes a contribution to a limited partnership and erroneously but in
good faith believes that he has become a limited partner in the limited
partnership is not a general partner in the limited partnership and is
not bound by its obligations by reason of making the contribution,
receiving distributions from the limited partnership or exercising any
rights of a limited partner, if, on ascertaining the mistake, he:
(1) causes an accurate certificate of limited partnership or a
certificate of amendment to be executed and filed; or
(2) withdraws from the partnership by executing and delivering to the
limited partnership a written notice declaring withdrawal under this
section.
(b) A person who makes a contribution of the kind described in
subdivision (a) of this section is liable as a general partner to any
third party who transacts business with the limited partnership (i)
before the person withdraws and an appropriate certificate is filed to
show withdrawal, or (ii) before an appropriate certificate is filed to
show that he is not a general partner, but in either case only if the
third party reasonably believed, based upon the limited partner's
conduct, that the limited partner was a general partner and extended
credit to the partnership in reasonable reliance on the credit of such
person.
§ 121-401. Admission of additional general partners. After the
effective date of the original certificate of limited partnership,
additional general partners may be admitted as provided in the
partnership agreement, or if the partnership agreement does not provide
for the admission of additional general partners, with the written
consent of all partners.
§ 121-402. Events of withdrawal of a general partner. A person ceases
to be a general partner of a limited partnership upon the happening of
any of the following events:
(a) the general partner withdraws from the limited partnership as
provided in section 121-602 of this article;
(b) the general partner ceases to be a general partner as provided in
section 121-702 of this article;
(c) the general partner is removed as a general partner as may be
provided in the partnership agreement;
(d) unless otherwise provided in the partnership agreement or approved
by all partners, the general partner (i) makes an assignment for the
benefit of creditors, (ii) is the subject of an order for relief under
Title 11 of the United States Code, (iii) files a petition or answer
seeking for himself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any
statute, law, or regulation, (iv) files an answer or other pleading,
admitting or failing to contest the material allegations of a petition
filed against him in any proceeding of this nature, or (v) seeks,
consents to, or acquiesces in the appointment of a trustee, receiver, or
liquidator of the general partner or of all or any substantial part of
his properties;
(e) unless otherwise provided in the partnership agreement or approved
by all partners, (i) if within one hundred twenty days after the
commencement of any proceeding against the general partner seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation,
the proceeding has not been dismissed or stayed, or within ninety days
after the expiration of any such stay, the proceeding has not been
dismissed, or (ii) if within ninety days after the appointment without
his consent or acquiescence of a trustee, receiver, or liquidator of the
general partner or of all or any substantial part of his properties, the
appointment is not vacated or stayed, or within ninety days after the
expiration of any such stay, the appointment is not vacated;
(f) in the case of a general partner who is a natural person, (i) his
death or (ii) the entry of a judgment by a court of competent
jurisdiction adjudicating him incompetent to manage his person or his
property;
(g) in the case of a general partner who is acting as a general
partner by virtue of being a trustee of a trust, the termination of the
trust (but not merely the substitution of a new trustee);
(h) in the case of a general partner that is a partnership, unless the
partnership agreement of such partnership provides for the right of any
one or more of the partners of such partnership to continue the business
of such partnership and such partnership is so continued, the
dissolution and commencement of winding up of such partnership;
(i) in the case of a general partner that is a corporation, the filing
of a certificate of dissolution, or its equivalent, for the corporation
or the revocation of its charter;
(j) in the case of a general partner that is an estate, the
distribution by the fiduciary of the estate's entire interest in the
limited partnership; or
(k) in the case of a general partner that is a limited liability
company, unless the operating agreement of such limited liability
company provides for the right of any member of such limited liability
company to continue the limited liability company and such limited
liability company is so continued, the dissolution and commencement of
winding up of such limited liability company.
§ 121-403. General powers and liabilities. (a) Except as provided in
this article or in the partnership agreement, a general partner of a
limited partnership has the rights and powers and is subject to the
restrictions of a partner in a partnership without limited partners.
(b) Except as provided in this article, a general partner of a limited
partnership has the liabilities of a partner in a partnership without
limited partners to persons other than the limited partnership and the
other partners.
(c) Except as provided in this article or in the partnership
agreement, a general partner of a limited partnership has the
liabilities of a partner in a partnership without limited partners to
the limited partnership and to the other partners.
§ 121-404. Contributions by a general partner. A general partner of a
limited partnership shall make contributions to the limited partnership
and share in the profits and losses of, and in distributions from, the
limited partnership as a general partner. A person who is a general
partner also may make contributions and share in profits, losses, and
distributions as a limited partner. A person who is both a general
partner and a limited partner has the rights and powers, and is subject
to the restrictions and liabilities, of a general partner and, except as
provided in the partnership agreement, also has the rights and powers,
and is subject to the restrictions, of a limited partner to the extent
of his participation in the partnership as a limited partner.
§ 121-405. Classes and voting by general partners. (a) A partnership
agreement may provide for classes or groups of general partners having
such relative rights and powers as the partnership agreement may
provide, and may make provision for the future creation in the manner
provided in the partnership agreement of additional classes of general
partners having such relative rights and powers as may from time to time
be established pursuant to the partnership agreement including rights
and powers senior to existing classes of general partners. The
partnership agreement may grant to all or to one or more classes of
general partners the right to vote, on a per capita, class or other
basis, upon any matter.
(b) A partnership 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 general partners, 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.
§ 121-501. Form of contribution. The contribution of a partner may be
in cash, property, or services rendered, or a promissory note or other
obligation to contribute cash or property or to render services.
§ 121-502. Liability for contributions. (a) Except as provided in the
partnership agreement, a partner is obligated to perform any promise, to
contribute cash or property or to perform services which is otherwise
enforceable in accordance with applicable law, even if he is unable to
perform because of death, disability or any other reason. Except as
provided in the partnership agreement, if a partner does not make any
required contribution of property or services, he is obligated at the
option of the limited partnership to contribute cash equal to that
portion of the value, as stated in the partnership records if so stated,
of the contribution that has not been 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 partnership may have
against such partner under the partnership agreement or applicable law.
(b) Unless otherwise provided in the partnership agreement and except
as provided in section 121-705 of this article, the obligation of a
partner to make a contribution or to return money or other property paid
or distributed in violation of this article may be compromised only by
consent of all the partners. Notwithstanding the compromise, a creditor
of a limited partnership who extends credit in reliance on that
obligation may enforce the original obligation to the extent he
reasonably relied on such obligation.
(c) A partnership agreement may provide that the interest of any
partner who fails to make any required contribution shall be subject to
specified consequences of such failure. Such consequences may take the
form of reducing or eliminating the defaulting partner's interest in the
limited partnership, subordinating his partnership interest to that of
nondefaulting partners, a forced sale of his partnership interest, the
lending by other partners of the amount necessary to meet his
commitment, a fixing of the value of his partnership interest by
appraisal or by formula and redemption or sale of his partnership
interest at such value, or other consequences.
§ 121-503. Sharing of profits and losses. The profits and losses of a
limited partnership shall be allocated among the partners, and among the
classes of partners, in the manner provided in the partnership
agreement. If the partnership 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 partnership if so stated, of the contributions,
but not including defaulted obligations to make contributions, of each
partner to the extent they have been received by or promised to the
limited partnership and have not been returned.
§ 121-504. Sharing of distributions. Distributions of cash or other
assets of a limited partnership shall be allocated among the partners,
and among classes of partners, in the manner provided in the partnership
agreement which may, among other things, establish record dates for
distributions. If the partnership agreement does not so provide,
distributions shall be allocated on the basis of the value, as stated in
the records of the limited partnership, if so stated, of the
contributions, but not including defaulted obligations to make
contributions, of each partner to the extent they have been received by
or promised to the limited partnership and have not been returned.
§ 121-601. Interim distributions. Except as provided in this article,
a partner is entitled to receive distributions from a limited
partnership before his withdrawal from the limited partnership and
before the dissolution and winding up thereof to the extent and at the
times or upon the happening of the events specified in the partnership
agreement.
§ 121-602. Withdrawal of a general partner. A general partner may
withdraw from a limited partnership at any time by giving written notice
to the other partners, but if the withdrawal violates the partnership
agreement, the limited partnership may recover from the withdrawing
general partner damages for breach of the partnership agreement, which
may be determined as set forth in the partnership agreement, and offset
the damages against the amount otherwise distributable to him.
§ 121-603. Withdrawal of a limited partner. (a) A limited partner may
withdraw from a limited partnership at the time or upon the happening of
events specified in the partnership agreement and in accordance with the
partnership agreement. Notwithstanding anything to the contrary under
applicable law, unless a partnership agreement provides otherwise, a
limited partner may not withdraw from a limited partnership prior to the
dissolution and winding up of the limited partnership. Notwithstanding
anything to the contrary under applicable law, a partnership agreement
may provide that a partnership interest may not be assigned prior to the
dissolution and winding up of the limited partnership.
(b) A limited partnership whose original certificate of limited
partnership was 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 partnership agreement.
§ 121-604. Right to distribution upon withdrawal. Except as provided
in this article upon withdrawal any withdrawing partner is entitled to
receive any distribution to which he is entitled under the partnership
agreement and, if not otherwise provided in the partnership agreement,
he is entitled to receive, within a reasonable time after withdrawal,
the fair value of his interest in the limited partnership as of the date
of withdrawal based upon his right to share in distributions from the
limited partnership.
§ 121-605. Distribution in kind. Except as provided in the partnership
agreement, a partner, regardless of the nature of his contribution, has
no right to demand and receive any distribution from a limited
partnership in any form other than cash. Except as provided in the
partnership agreement, a partner may not be compelled to accept a
distribution of any asset in kind from a limited partnership to the
extent that the percentage of the asset distributed to him exceeds a
percentage of that asset which is equal to the percentage in which he
shares in distributions from the limited partnership.
§ 121-606. Right to distribution. Subject to sections 121-607 and
121-804 of this article, at the time a partner becomes entitled to
receive a distribution, he has the status of, and is entitled to all
remedies available to, a creditor of the limited partnership with
respect to the distribution.
§ 121-607. Limitations on distribution. (a) A limited partnership
shall not make a distribution to a partner to the extent that, at the
time of the distribution, after giving effect to the distribution, all
liabilities of the limited partnership, other than liabilities to
partners on account of their partnership interests and liabilities for
which recourse of creditors is limited to specified property of the
limited partnership, exceed the fair market value of the assets of the
limited partnership, 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 partnership only to the
extent that the fair value of that property exceeds that liability.
(b) A limited partner who receives a distribution in violation of
subdivision (a) of this section, and who knew at the time of the
distribution that the distribution violated subdivision (a) of this
section, shall be liable to the limited partnership for the amount of
the distribution. A limited partner 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 limited
partner under a partnership agreement or other applicable law for the
amount of a distribution.
(c) Unless otherwise agreed, a limited partner who receives a wrongful
distribution from a limited partnership 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.
§ 121-701. Nature of partnership interest. An interest in a limited
partnership is personal property and a partner has no interest in
specific partnership property.
§ 121-702. Assignment of partnership interest. (a) Except as provided
in the partnership agreement,
(1) A partnership interest is assignable in whole or in part;
(2) An assignment of a partnership interest does not dissolve a
limited partnership or entitle the assignee to become or to exercise any
rights or powers of a partner;
(3) The only effect of an assignment 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 partner ceases to be a partner and to have the power to exercise
any rights or powers of a partner upon assignment of all of his
partnership interest. Unless otherwise provided in the partnership
agreement, the pledge of, or the granting of a security interest, lien
or other encumbrance in or against, any or all of the partnership
interest of a partner shall not cause the partner to cease to be a
partner or to have the power to exercise any rights or powers of a
partner.
(b) The partnership agreement may provide that a limited partner's
interest may be evidenced by a certificate issued by the partnership and
may also provide for the assignment or transfer of any of the interest
represented by such a certificate. A limited partner'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 shall be
deemed to be a general intangible.
(c) Unless otherwise provided in a partnership agreement and except to
the extent assumed by agreement, until an assignee of a partnership
interest becomes a partner, the assignee shall have no liability as a
partner solely as a result of the assignment.
§ 121-703. Rights of creditor. On application to a court of competent
jurisdiction by any judgment creditor of a partner, the court may charge
the partnership interest of the partner 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 partnership
interest. This article does not deprive any partner of the benefit of
any exemption laws applicable to his partnership interest.
§ 121-704. Right of assignee to become limited partner. (a) An
assignee of a partnership interest, including an assignee of a general
partner, may become a limited partner if (i) the assignor gives the
assignee that right in accordance with authority granted in the
partnership agreement, or (ii) all partners consent in writing, or (iii)
to the extent that the partnership agreement so provides.
(b) An assignee who has become a limited partner has, to the extent
assigned, the rights and powers, and is subject to the restrictions and
liabilities, of a limited partner under the partnership agreement and
this article. Notwithstanding the foregoing, unless otherwise provided
in the partnership agreement, an assignee who becomes a limited partner
is liable for the obligations of his assignor to make contributions as
provided in section 121-502 of this article, but shall not be liable for
the obligations of his assignor under sections 121-603 and 121-607 of
this article. However, the assignee is not obligated for liabilities,
including the obligations of his assignor to make contributions as
provided in section 121-502 of this article, unknown to the assignee at
the time he becomes a limited partner.
§ 121-705. Liability upon assignment. (a) The assignor of a
partnership interest is not released from any liability under this
article or the partnership agreement, except liabilities which arise
after the effectiveness of the assignment and are pursuant to section
121-207 of this article, section 121-607 of this article or, in the
event the assignee becomes a limited partner, unless otherwise provided
in the partnership agreement, section 121-502 of this article.
(b) An assignee who becomes a limited partner is liable for the
obligations to make contributions and return distributions as provided
for in this article, provided, however, that the assignee is not
obligated for liabilities unknown to the assignee at the time he became
a limited partner and which could not be ascertained from the
partnership agreement and provided, further, that the assignee is not
obligated for any accrued liabilities of the assignor at the time of
assignment unless the assignee specifically assumes such liabilities.
§ 121-706. Power of estate of deceased or incompetent partner.
Subject to subdivision (f) of section 121-402 of this article, if a
partner who is an individual dies or a court of competent jurisdiction
adjudges him to be incompetent to manage his person or his property, the
partner's executor, administrator, guardian, conservator or other legal
representative may exercise all of the partner's rights for the purpose
of settling his estate or administering his property, including any
power under the partnership agreement of an assignee to become a limited
partner. If a partner is a corporation, trust, or other entity and is
dissolved or terminated, the powers of that partner may be exercised by
its legal representative or successor.
§ 121-801. Nonjudicial dissolution. A limited partnership is dissolved
and its affairs shall be wound up upon the happening of the first to
occur of the following:
(a) at the time, if any, provided in the certificate of limited
partnership;
(b) at the time or upon the happening of events specified in the
partnership agreement;
(c) subject to any requirement in the partnership agreement requiring
approval by any greater or lesser percentage of limited partners and
general partners, upon the written consent (1) of all of the general
partners and (2) of a majority in interest of each class of limited
partners;
(d) an event of withdrawal of a general partner unless (1) at the time
there is at least one other general partner and the partnership
agreement permits the business of the limited partnership to be carried
on by the remaining general partner and that partner does so, or (2)
unless the partnership agreement provides otherwise, if within ninety
days after the withdrawal of the last general partner, not less than a
majority in interest of the limited partners agree in writing to
continue the business of the limited partnership and to the appointment,
effective as of the date of withdrawal, of one or more additional
general partners if necessary or desired; or
(e) entry of a decree of judicial dissolution under section 121-802 of
this article.
(f) a limited partnership whose original certificate of limited
partnership was 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 partnership agreement.
§ 121-802. Judicial dissolution. On application by or for a partner,
the supreme court in the judicial district in which the office of the
limited partnership is located may decree dissolution of a limited
partnership whenever it is not reasonably practicable to carry on the
business in conformity with the partnership 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.
§ 121-803. Winding up. (a) In the event of a dissolution of a limited
partnership, except for a dissolution pursuant to section 121-802 of
this article, unless otherwise provided in the partnership agreement,
the general partners who have not wrongfully dissolved a limited
partnership or, if none, the limited partners, may wind up the limited
partnership's affairs; upon cause shown, the supreme court in the
judicial district in which the office of the limited partnership is
located may wind up the limited partnership's affairs upon application
of any partner, his legal representative, or assignee, and in connection
therewith may appoint a receiver or liquidating trustee.
(b) Upon dissolution of a limited partnership, the persons winding up
the limited partnership's affairs may, in the name of, and for and on
behalf of, the limited partnership prosecute and defend suits, whether
civil, criminal or administrative, settle and close the limited
partnership's business, dispose of and convey the limited partnership's
property, discharge the limited partnership's liabilities, and
distribute to the partners any remaining assets of the limited
partnership, all without affecting the liability of limited partners
including limited partners participating in the winding up of the
limited partnership's affairs.
§ 121-804. Distribution of assets. Upon the winding up of a limited
partnership, the assets shall be distributed as follows:
(a) to creditors, including partners who are creditors, to the extent
permitted by law, in satisfaction of liabilities of the limited
partnership, whether by payment or by establishment of adequate
reserves, other than liabilities for distributions to partners under
section 121-601 or 121-604 of this article;
(b) except as provided in the partnership agreement, to partners and
former partners in satisfaction of liabilities for distributions under
section 121-601 or 121-604 of this article; and
(c) except as provided in the partnership agreement, to partners first
for the return of their contributions, to the extent not previously
returned, and secondly respecting their partnership interests, in the
proportions in which the partners share in distributions in accordance
with section 121-504 of this article.
§ 121-901. Law governing. Subject to the constitution of this state,
the laws of the jurisdiction under which a foreign limited partnership
is organized govern its organization and internal affairs and the
liability of its limited partners.
§ 121-902. Application for authority, contents. (a) Before doing
business in this state, a foreign limited partnership 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 organization, a certified copy of a
restated certificate of limited partnership and all subsequent
amendments thereto or, if no restated certificate has 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 thereof under oath of the translator
shall be attached thereto) and (ii) an application for authority as a
foreign limited partnership entitled "Application for authority of
......... (name of limited partnership) under Section 121-902 of the
Revised Limited Partnership Act," signed by a general partner and
setting forth:
(1) the name of the foreign limited partnership and, if a foreign
limited partnership's name is not acceptable for authorization pursuant
to section 121-102 of this article, 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 121-102 of this article and
shall be used by the foreign limited partnership 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 partnership 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 limited
partnership 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 partnership
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 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 organization by the laws of that jurisdiction or, if
not so required, of the principal office of the foreign limited
partnership;
(7) a list of the names and business or residence addresses of all
general partners;
(8) a statement that the foreign limited partnership is in existence
in the jurisdiction of its organization at the time of the filing of
such application; and
(9) the name and address of the authorized officer in its jurisdiction
of its organization where a copy of its certificate of limited
partnership is filed and, if no public filing of its certificate of
limited partnership is required by the law of its jurisdiction of
organization, a statement that the limited partnership 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.
(b) Without excluding other activities which may not constitute doing
business in this state, a foreign limited partnership shall not be
considered to be doing business in this state for the purposes of this
article, 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 partners, general or limited;
(3) maintaining bank accounts; or
(4) maintaining offices or agencies only for the transfer, exchange
and registration of its partnership interests, or appointing and
maintaining depositaries with relation to its partnership interests.
(c) The specification in subdivision (b) of this section does not
establish a standard for activities which may subject a foreign limited
partnership to service of process under this article or any other
statute of this state.
(d)(i) Within one hundred twenty days after the filing of the
application for authority, 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 partnership 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
partnership 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 partnership 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: (1)
the name of the foreign limited partnership and the fictitious name
under which it applied for authority to do business in this state, if
any; (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 partnership 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 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; (6) if it has a registered agent, his or her
name and address within the state and a statement that the registered
agent is its agent upon whom process 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 partnership; (8) a statement
that the list of the names and business or residence addresses of all
general partners is available from the secretary of state; (9) the name
and address of the authorized officer in its jurisdiction of
organization where a copy of its certificate of limited partnership is
filed and, if no public filing of its certificate of limited partnership
is required by the law of its jurisdiction of organization, a statement
that the limited partnership 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 (10) the character or purpose
of the business of such partnership. 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 partnership may complete the remaining
publications of the original copy or notice, and the foreign limited
partnership 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 application for
authority with the department of state, proof of such publication,
consisting of the certificate of publication of the foreign limited
partnership 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 partnership 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 partnership 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 partnership'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 partnership, or any right or remedy of any other
party under or by virtue of any contract, act or omission of such
foreign limited partnership, 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 partnership to defend any action or
special proceeding in this state, or result in any partner or agent of
such foreign limited partnership becoming liable for the contractual
obligations or other liabilities of the foreign limited partnership. If,
at any time following the suspension of a foreign limited partnership's
authority to carry on, conduct or transact business in this state
pursuant to this paragraph, such foreign limited partnership 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
partnership with the affidavits of publication of the newspapers annexed
thereto, to be filed with the department of state, such suspension of
such foreign limited partnership's authority to carry on, conduct or
transact business shall be annulled.
(ii)(1) A foreign limited partnership 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 partnership 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 partnership with the
affidavits of publication of the newspapers annexed thereto, with the
department of state.
(3) If a foreign limited partnership 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 partnership 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 partnership'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 partnership, or any right or remedy of any other
party under or by virtue of any contract, act or omission of such
foreign limited partnership, 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 partnership to defend any action or
special proceeding in this state, or result in any partner or agent of
such foreign limited partnership becoming liable for the contractual
obligations or other liabilities of the foreign limited partnership.
(5) If, at any time following the suspension of a foreign limited
partnership's authority to carry on, conduct or transact business in
this state, pursuant to subparagraph three of this paragraph, such
foreign limited partnership 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 partnership with
the affidavits of publication of the newspapers annexed thereto, to be
filed with the department of state, such suspension of such foreign
limited partnership's authority to carry on, conduct or transact
business shall be annulled.
(6) For the purposes of this paragraph, a foreign limited partnership
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 (A) the
foreign limited partnership 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 partnership 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 (B) the foreign limited partnership 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 partnership 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.
§ 121-903. Certificate of amendment. (a) A foreign limited
partnership 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 limited partnership) under
section 121-903 of the Revised Limited Partnership Act," shall be signed
and delivered to the department of state. It shall set forth:
(1) the name of the foreign organization as it appears on the index of
names of existing domestic and authorized foreign limited partnerships
of any type or kind in the department of state, and the fictitious name,
if any, the foreign limited partnership has agreed to use in this state
pursuant to section 121-902 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 partnership is to be
changed, a statement that the change of name has been effected under the
laws of the jurisdiction of its organization and the date the change was
so effected.
(b) Every foreign limited partnership which has received a filing
receipt 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.
§ 121-903-A. Certificate of change. (a) A foreign limited partnership
may change its application for authority by filing with the department
of state a certificate of change entitled "Certificate of Change
of ........ (name of limited partnership) under Section 121-903-A of the
Revised Limited Partnership Act" and shall be signed and delivered to
the department of state. A certificate of change may (i) change the
location of the limited partnership's office; (ii) change the post
office address to which the secretary of state shall mail a copy of
process against the limited partnership served upon him; (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 partnership
has been electronically served upon him or her; and (iv) make, revoke or
change the designation of a registered agent, or to specify or change
the address of its registered agent. It shall set forth:
(1) the name of the foreign limited partnership and, if applicable,
the fictitious name the foreign limited partnership has agreed to use in
this state pursuant to section 121-902 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 partnership 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 foreign limited partnership shall 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 partnership 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 partnership has not objected thereto; and that
the party signing the certificate is the agent of such foreign limited
partnership to whose address the secretary of state is required to mail
copies of process, the email address of the party to whose email address
the secretary of state is required to mail a notice of the fact that
process against it has been electronically served upon the secretary of
state and/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 partnership in
whose behalf such certificate is filed.
§ 121-904. Application for authority; effect. (a) Upon filing by the
department of state of the application for authority the foreign limited
partnership shall be authorized to do business in this state. Such
authority shall continue so long as it 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 partnership which 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 partnership; provided,
that this subdivision shall not affect the powers of the foreign limited
partnership outside this state.
§ 121-905. Surrender of certificate of authority. (a) A foreign
limited partnership may surrender its certificate of authority by filing
with the department of state a certificate entitled, "Certificate of
surrender of authority of.... (name of limited partnership)" signed by a
general partner, or by a trustee, receiver or other person authorized by
law to wind up such partnership. The authority of the foreign limited
partnership 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 partnership with respect to causes of
action arising out of doing business in this state.
(b) The certificate of surrender of authority shall state:
(1) the name of the foreign limited partnership as it appears on the
index of names of existing domestic and authorized foreign limited
partnerships of any type or kind in the department of state, and the
fictitious name the foreign limited partnership has agreed to use in
this state pursuant to section 121-902 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 section 121-109 of this article; 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 partnership 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.
§ 121-906. Termination of existence. When a foreign limited
partnership which has received a certificate of authority is dissolved
or its authority to conduct its business or existence is otherwise
terminated or cancelled in the jurisdiction of its organization or when
such foreign limited partnership is merged into or consolidated with
another foreign limited partnership, (i) a certificate of the secretary
of state, or official performing the equivalent function as to limited
partnership records, in the jurisdiction of organization of such limited
partnership attesting to the occurrence of any such event, or (ii) a
certified copy of an order or decree of a court of such jurisdiction
directing the dissolution of such foreign limited partnership, 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 121-905 of this
article. The secretary of state shall continue as agent of the foreign
limited partnership upon whom process against it may be served in the
manner set forth in section 121-109 of this article, in any action or
proceeding based upon any liability or obligation incurred by the
foreign limited partnership 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 121-903 or a certificate of
change under section 121-903-A of this article.
§ 121-907. Doing business without certificate of authority. (a) A
foreign limited partnership 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 partnership shall have received a
certificate of authority in this state.
(b) The failure of a foreign limited partnership that is doing
business in this state to comply with the provision of this article does
not impair the validity of any contract or act of the foreign limited
partnership or prevent the foreign limited partnership from defending
any action or special proceeding in any court of this state.
(c) A limited partner of a foreign limited partnership is not liable
as a general partner of the foreign limited partnership solely by reason
of the limited partnership's doing or having done business in this state
without having received a certificate of authority.
(d) A foreign limited partnership by doing business in this state
without authority 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 partnership may be served upon the secretary of state in the
manner set forth in section 121-109 of this article.
§ 121-908. Violations. The attorney general shall, upon his own motion
or upon the motion of proper parties, bring an action to restrain a
foreign limited partnership without a certificate of authority from
doing any business in this state in violation of this article, or from
doing any business in this state which 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 partnership which
is doing any business in this state which 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 partnership to do business in this state shall be
annulled, and the provisions of section 121-906 of this article shall
thereafter be applicable. The secretary of state shall continue as
agent of the foreign limited partnership 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
partnership within the state prior to the filing of the certified copy
of the order of annulment by the department of state.
§ 121-1001. Parties to actions. A limited partner, unless he is also a
general partner, is not a proper party to proceedings by or against a
partnership, except where the object is to enforce a limited partner's
right against or liability to the partnership and except in cases
provided for in section 121-1002 of this article.
§ 121-1002. Limited partners' derivative action. (a) A limited partner
may bring an action in the right of a limited partnership to recover a
judgment in its favor if all general partners with authority to do so
have refused to bring the action or if an effort to cause those general
partners to bring the action is not likely to succeed.
(b) In a derivative action, at least one plaintiff must be a limited
partner at the time of bringing the action and (i) at the time of the
transaction of which he complains, or (ii) his status as a limited
partner had devolved upon him by operation of law or in accordance with
the terms of the partnership agreement from a person who was a partner
at the time of the transaction of which he complains.
(c) In a derivative action, the complaint shall set forth with
particularity the efforts of the plaintiff to secure the initiation of
such action by a general partner, or the reasons for not making such
effort.
(d) A derivative action shall not be discontinued, compromised or
settled without the approval of the court having jurisdiction of the
action. If the court shall determine that the interests of the limited
partners will be substantially affected by such discontinuance,
compromise or settlement, the court, in its discretion, may direct that
notice, by publication or otherwise, shall be given to the limited
partners whose interests it determines will be so affected. If notice is
so directed to be given, the court may determine which one or more of
the parties to the action shall bear the expenses of giving the same, in
such amount as the court shall determine and find to be reasonable in
the circumstances, and the amount of such expense shall be awarded as
special costs of the action and recoverable in the same manner as
statutory taxable costs.
(e) If the derivative action on behalf of the limited partnership is
successful, in whole or in part, or if anything is received by the
plaintiff or plaintiffs or a claimant or claimants as a result of a
judgment, compromise or settlement of an action or claim, the court may
award the plaintiff or plaintiffs, claimant or claimants reasonable
expenses, including reasonable attorneys' fees, and shall direct him or
them to account to the limited partnership for the remainder of the
proceeds so received by him or them. This subdivision shall not apply to
any judgment rendered for the benefit of injured limited partners only
and limited to a recovery of the loss or damage sustained by them.
§ 121-1003. Security for expenses. In a derivative action, brought
pursuant to section 121-1002 of this article, unless the contributions
of or allocable to the plaintiff or plaintiffs amount to five percent or
more of the contributions of all limited partners, in their status as
limited partners, or such contributions of or allocable to such
plaintiff or plaintiffs have a fair value in excess of fifty thousand
dollars, the limited partnership in whose right such action is brought
shall be entitled at any stage of the proceedings before final judgment
to require the plaintiff or plaintiffs to give security for the
reasonable expenses, including attorney's fees, which may be incurred by
it in connection with such action and by the other parties defendant in
connection therewith for which the limited partnership may become liable
under this article or under any contract or otherwise under law. The
limited partnership shall have recourse to such security in such amount
as the court having jurisdiction of such action shall determine upon the
termination of such action. Notwithstanding the first sentence of this
section, the amount of any security may from time to time be determined
in the discretion of the court having jurisdiction of such action, even
if the five percent of contributions or fifty thousand dollar value test
is met, upon a showing of the need therefor.
§ 121-1004. Indemnification of general partner. (a) No provision made
to indemnify general partners for the defense of a derivative action,
brought pursuant to section 121-1002 of this article, whether contained
in the partnership agreement or otherwise, nor any award of
indemnification by a court, shall be valid unless consistent with this
section. Nothing contained in this section shall affect any rights to
indemnification to which limited partners, employees and agents of the
limited partnership who are not general partners may be entitled by
contract or otherwise under law.
(b) A limited partnership may indemnify, and may advance expenses to,
any general partner, including a general partner made a party to an
action in the right of a limited partnership to procure a judgment in
its favor by reason of the fact that he, his testator or intestate, is
or was a general partner in the limited partnership, provided that no
indemnification may be made to or on behalf of any general partner if a
judgment or other final adjudication adverse to the general partner
establishes that his 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 that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
§ 121-1101. Merger and consolidation of limited partnerships. One or
more limited partnerships formed under this article or which complies
with subdivision (a) of section 121-1202 of this article may merge with,
or consolidate into, a limited partnership formed under this article or
which complies with subdivision (a) of such section or under the law of
any other state. Whenever used in this article, "merger" shall mean a
procedure in which two or more limited partnerships merge into a single
limited partnership which shall be one of the constituent limited
partnerships and "consolidation" shall mean a procedure in which two or
more limited partnerships consolidate into a single limited partnership
which shall be a new limited partnership to be formed pursuant to the
consolidation.
§ 121-1102. Procedure for merger or consolidation. (a) The general
partners of each constituent limited partnership shall adopt an
agreement of merger or consolidation, setting forth the partnership
agreement of the surviving or consolidated limited partnership and the
terms and conditions of the conversion of the interests of general and
limited partners of the constituent limited partnerships into general
and limited partnership interests in the surviving or resulting limited
partnership or the cash or other consideration to be paid or delivered
in exchange for interests in a constituent limited partnership, or a
combination thereof. The agreement shall be submitted to the partners of
each constituent limited partnership at a regular or special meeting
called on twenty days notice or such greater notice as the partnership
agreement may provide. Subject to any requirement in the partnership
agreement requiring approval by any greater or lesser, which shall not
be less than a majority in interest, percentage of limited partners, the
agreement shall be approved on behalf of each constituent limited
partnership (i) by such 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 a majority in
interest of each class of limited partners. Notwithstanding
authorization by the partners, the plan of merger or consolidation may
be abandoned pursuant to a provision for such abandonment, if any,
contained in the plan of merger or consolidation.
(b) Any limited partner of a limited partnership which is a party to a
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
limited partnership written notice of dissent from the proposed merger
or consolidation. Such notice of dissent may be withdrawn by the
dissenting limited partner at any time prior to the effective date of
the merger or consolidation and shall be deemed to be withdrawn if the
limited partner casts a vote in favor of the proposed merger or
consolidation.
(c) Upon the effectiveness of the merger or consolidation the
dissenting limited partner of any constituent limited partnership shall
not become or continue to be a limited partner of the surviving or
resulting limited partnership, but shall be entitled to receive in cash
from the surviving or resulting limited partnership the fair value of
his interest in the limited partnership as of the close of business of
the day prior to the effective date of the merger or consolidation in
accordance with section 121-604 of this article, but without taking
account of the effect of the merger or consolidation.
(d) A limited partner of a constituent limited partnership who has a
right under this article to demand payment for his partnership interest
shall not have any right at law or in equity under this article 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
partnership agreement or subdivision (a) of this section.
(e) A limited partnership whose original certificate of limited
partnership was 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 partnership agreement.
§ 121-1103. Certificate of merger or consolidation; contents. (a)
After adoption of the plan of merger or consolidation by the partners of
each constituent limited partnership, unless the merger or consolidation
is abandoned in accordance with subdivision (a) of section 121-1102 of
this article, a certificate of merger or consolidation, entitled
"Certificate of merger (or consolidation) of........ and.......
into.......... (names of limited partnership) under Section 121-1103 of
the Revised Limited Partnership Act", shall be signed on behalf of each
constituent limited partnership and delivered to the department of
state. The certificate of merger or consolidation shall set forth:
(1) The name of each constituent limited partnership, and if the name
has been changed, the name under which it was formed; and the name of
the surviving limited partnership, or the name of the consolidated
limited partnership;
(2) If a constituent is a domestic limited partnership, the date when
its certificate of limited partnership was filed with the department of
state under this article, or the date when and the county in which its
original certificate of limited partnership was filed under article
eight of this chapter;
(3) If a constituent is a foreign limited partnership the jurisdiction
and date of filing of its original certificate of limited partnership
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
partnership is the survivor) that it is not to do business in this state
until an application for such authority shall have been filed by the
department of state;
(4) If a domestic limited partnership is the surviving limited
partnership, such changes in its certificate of limited partnership as
shall be necessary by reason of merger;
(5) If a domestic limited partnership is the resulting limited
partnership in a consolidation, the matters required to be set forth
under section 121-201 of this article;
(6) If the surviving or resulting limited partnership is a foreign
limited partnership: An agreement that the surviving or consolidated
foreign limited partnership 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 partnership or of any foreign limited
partnership previously amenable to suit in this state which is a
constituent limited partnership in such merger or consolidation, and for
the enforcement as provided in this article, of the right of partners of
any domestic limited partnership to receive payment for their interest
against the surviving or consolidated limited partnership; and
(7) A designation of the secretary of state as its agent upon whom
process against it may be served in the manner set forth in section
121-109 of this article 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 partnership 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.
(b) The merger or consolidation shall be effective upon the filing
thereof 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
certificates filed may provide.
§ 121-1104. Effect of merger or consolidation. When such merger or
consolidation has been effected:
(a) all the property, real and personal, tangible and intangible, of
each constituent limited partnership shall vest in the surviving or
resulting limited partnership;
(b) to the extent provided in the plan of merger or consolidation, the
partners of each constituent limited partnership shall continue or
become partners in the surviving or resulting limited partnership with
such interest as the agreement of merger or consolidation shall provide;
(c) the surviving or resulting limited partnership shall be liable for
all debts, obligations, liabilities and penalties of each constituent
limited partnership as though each such debt, obligation, liability or
penalty had been originally incurred by such surviving or resulting
limited partnership; and
(d) no action, suit or proceeding, civil or criminal, then pending by
or against any such constituent limited partnership in its common name
shall abate or be discontinued by reason of such merger or
consolidation, but may be prosecuted by or proceed against such
surviving or resulting limited partnership.
§ 121-1105. Payment for interest of dissenting limited partners. (a)
Within ten days after the occurrence of an event described in section
121-1102 of this article, the surviving or resulting limited partnership
shall send to each dissenting former limited partner a written offer to
pay in cash the fair value of such former partner's interest. Payment
in cash shall be made to each former limited partner accepting such
offer within ten days after notice of such acceptance is received by the
surviving or resulting limited partnership.
(b) If a former limited partner and the surviving or resulting limited
partnership fail to agree on the price to be paid for the former limited
partner's partnership interest within ninety days after the surviving or
resulting limited partnership shall have made the offer provided for in
subdivision (a) of this section, or if the limited partnership or
surviving limited partnership 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)-(k) of section six hundred
twenty-three of the business corporation law shall apply, as they may be
amended from time to time.
(c) A payment under this section shall constitute a return of a
partner's contribution for the purposes of section 121-607 of this
article.
§ 121-1106. Mergers and consolidations involving other business
entities. One or more domestic limited partnerships formed under this
article or which comply with subdivision (a) of section 121-1202 of this
article may merge with, or consolidate into, one or more other business
entities formed under the law of this state or the law of any other
state, in each case with the surviving or resulting entity being a
limited partnership or a domestic or foreign other business entity;
provided that (i) any limited partnership so merging or consolidating
complies with the provisions of this chapter so far as applicable to it
and as applicable to any surviving or resulting limited partnership and
(ii) any such other business entity so merging or consolidating complies
with the applicable provisions of the statute governing such other
business entity. With respect to adoption of an agreement of merger or
consolidation pursuant to section 121-1102 of this article, the general
partners of each constituent limited partnership shall adopt an
agreement of merger or consolidation (to be submitted to the partners of
the limited partnership as provided in subdivision (a) of section
121-1102) setting forth the terms and conditions of the conversion of
the interests of the general and limited partners of such constituent
limited partnerships into interests in the surviving or resulting entity
or the cash or other consideration to be paid or delivered in exchange
for interests in such constituent limited partnerships, or a combination
thereof. The rights of any dissenting limited partner of any constituent
limited partnership shall be as provided in this chapter whether the
surviving or resulting entity is a limited partnership or a domestic or
foreign other business entity. The certificate of merger or
consolidation required pursuant to section 121-1103 of this article
shall include the information required by paragraphs one, two, three and
six of subdivision (a) of such section (as applicable) as to the
constituent other business entities. The provisions of section 121-1104
of this article shall govern the effect of the merger or consolidation
with respect to the property of, debts, obligations, liabilities and
penalties of, and actions, suits and proceedings by or against, the
constituent limited partnership if the survivor or resultant entity
therefrom is a limited partnership. A certificate of merger or
consolidation shall be filed with the department of state pursuant to
the law applicable to such surviving or resulting entity. If the
surviving or resulting entity is an other business entity for which the
laws of this state do not provide for the filing of a certificate of
merger or consolidation, such certificate shall be filed pursuant to
this section.
§ 121-1201. Existing limited partnership. (a) All limited partnerships
formed on or after the effective date of this article shall be governed
by this article.
(b) Except as provided in section 121-1202 of this article, all
domestic limited partnerships formed under the laws of this state prior
to the effective date of this article shall continue to be governed by
article eight of this chapter, as amended, in the same manner as if this
article had not been enacted.
(c) All foreign limited partnerships which have authority to do
business in New York on such effective date shall be deemed to have
received authority under this article and such foreign limited
partnerships shall not be required to take any action with respect
thereto.
§ 121-1202. Adoption by previously formed limited partnerships. (a) A
limited partnership formed under the laws of this state prior to the
effective date of this article may adopt and thereafter be governed by
this article by filing with the department of state a certificate of
limited partnership conforming to the requirements of section 121-201 of
this article. Such certificate (i) shall be entitled "Certificate of
adoption of Revised Limited Partnership Act of...(name of limited
partnership) under Section 121-1202 of the Revised Limited Partnership
Act", and (ii) shall state the date and the county in which its original
certificate of limited partnership was filed, as well as the name of the
limited partnership as provided in such original certificate, if
different. Simultaneously, such limited partnership shall file a notice
with the county clerk of the county in which its prior certificate was
filed stating that it has filed a certificate under this article in the
department of state.
(b) On and after the effective date of this article, any limited
partnership formed under the laws of the state prior to the effective
date of this article which does not elect to be governed by this article
which would be required under article eight to amend its certificate of
limited partnership or wishes to amend its certificate of limited
partnership shall file such amendment with the department of state,
together with a certificate of adoption as described in subdivision (a)
of this section. Such amendment shall (i) contain a caption that such
amendment is filed pursuant to this subdivision and (ii) shall state (A)
the date on which and the county in which its original certificate of
limited partnership was filed as well as the name of the limited
partnership as provided in such original certificate, if different; and
(B) if the principal place of business stated in such original
certificate of limited partnership has been changed to another county
and an amendment thereto filed with the county clerk of the county in
which such principal place of business was changed, the date on and the
county in which such amendment was filed. Simultaneously, such limited
partnership shall file a notice with the county clerk of the county in
which its prior certificate was filed stating that it has filed an
amendment to its certificate under this section. Following the filing of
an initial notice to such clerks of the county no further notice of any
additional amendments need be filed with such clerks of the county.
(c) Notwithstanding the provisions of section 121-102 of this article,
any limited partnership not electing to be governed by this article may
continue to use the name under which it has heretofore done business in
this state. A limited partnership electing not to be governed by this
article upon filing the amendments provided for in subdivision (b) of
this section shall thereafter be governed by this article and not by the
law previously applicable to it.
(d) Unless otherwise provided in the partnership agreement of the
limited partnership organized prior to the effective date of this
article, the general partners of such limited partnership shall have the
power and authority to elect whether at any time such limited
partnership shall be governed by this article.
§ 121-1300 Fees. Except as otherwise provided, the department of state
shall collect the following fees and deposit such fees in the
corporations, state records and uniform commercial code account pursuant
to this article:
(a) For the reservation of a limited partnership name pursuant to
section 121-103 of this article, twenty dollars.
(d) For the resignation of a registered agent for service of process
pursuant to subdivision (c) of section 121-105 of this article, twenty
dollars.
(e) For filing a certificate of limited partnership pursuant to
section 121-201 of this article, two hundred dollars.
(f) For filing a certificate of publication with affidavits of
publication annexed thereto pursuant to either section 121-201 or
121-902 of this article, fifty dollars.
(g) For filing a certificate of amendment pursuant to section 121-202
of this article, sixty dollars.
(h) For filing a certificate of cancellation pursuant to section
121-203 of this article, sixty dollars.
(i) For filing a restated certificate of limited partnership pursuant
to section 121-208 of this article, sixty dollars.
(j) For filing a judicial dissolution pursuant to section 121-802 of
this article, sixty dollars.
(k) For filing an application for authority pursuant to section
121-902 of this article, two hundred dollars.
(l) For filing an amendment to an application for authority pursuant
to section 121-903 of this article, sixty dollars.
(m) For filing a certificate of surrender of authority pursuant to
section 121-905 of this article, sixty dollars.
(n) For filing a certificate of termination of existence pursuant to
section 121-906 of this article, sixty dollars.
(o) For filing a certificate of merger or consolidation pursuant to
section 121-1103 of this article, sixty dollars.
(p) For filing a certificate of adoption pursuant to section 121-1202
of this article, two hundred dollars.
(q) For filing a certificate of resignation for receipt for process
pursuant to section 121-104-A of this article, ten dollars.
(r) For service of process on the secretary of state pursuant to
section 121-104-A or section 121-109 of this article, 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.
(s) For filing a certificate of change pursuant to subdivision (a) of
section 121-202-A or subdivision (a) of section 121-903-A of this
article, thirty dollars, and for filing a certificate of change pursuant
to subdivision (b) of section 121-202-A or subdivision (b) of section
121-903-A of this article, five dollars.
§ 121-1500. Registered limited liability partnership. (a)(I)
Notwithstanding the education law or any other provision of law, (i) a
partnership without limited partners each of whose partners 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 partnership or a predecessor entity, or will engage
in the practice of such profession in the registered limited liability
partnership within thirty days of the date of the effectiveness of the
registration provided for in this subdivision or 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 and who is or has been engaged in the practice of such
profession in such partnership or a predecessor entity, or will engage
in the practice of such profession in the registered limited liability
partnership within thirty days of the date of the effectiveness of the
registration provided for in this subdivision, (ii) 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, which renders or intends to render professional services
within this state, or (iii) a related limited liability partnership may
register as a registered limited liability partnership by filing with
the department of state a registration which shall set forth:
(1) the name of the registered limited liability partnership;
(2) the address of the principal office of the partnership without
limited partners;
(3) the profession or professions to be practiced by such partnership
without limited partners and a statement that it is eligible to register
as a registered limited liability partnership pursuant to subdivision
(a) of this section;
(4) a designation of the secretary of state as agent of the
partnership without limited partners 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 or
served upon it. The partnership without limited partners 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 partnership without limited partners is to have a
registered agent, its name and address in this state and a statement
that the registered agent is to be the agent of the partnership without
limited partners upon whom process against it may be served;
(6) that the partnership without limited partners is filing a
registration for status as a registered limited liability partnership;
(7) if the registration of the partnership without limited partners is
to be effective on a date later than the time of filing, the date, not
to exceed sixty days from the date of such filing, of such proposed
effectiveness;
(8) if all or specified partners of the registered limited liability
partnership are to be liable in their capacity as partners for all or
specified debts, obligations or liabilities of the registered limited
liability partnership as authorized pursuant to subdivision (d) of
section twenty-six of this chapter, a statement that all or specified
partners are so liable for such debts, obligations or liabilities in
their capacity as partners of the registered limited liability
partnership as authorized pursuant to subdivision (d) of section
twenty-six of this chapter; and
(9) any other matters the partnership without limited partners
determines to include in the registration.
(II) (A) Within one hundred twenty days after the effective date of
the registration, 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 principal
office of the registered limited liability partnership is located in
this state, one newspaper 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
registered limited liability partnership with the affidavits of
publication annexed thereto, must be filed, with a fee of fifty dollars,
with the department of state. Notwithstanding any other provision of
law, if the office of the registered limited liability partnership 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 paragraph. The notice shall include: (1) the name of the
registered limited liability partnership; (2) the date of filing of the
registration with the department of state; (3) the county within this
state, in which the principal office of the registered limited liability
partnership 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 registered limited liability
partnership 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 registered limited liability partnership 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 registered
limited liability partnership upon whom process against it may be
served; (6) if the registered limited liability partnership is to have a
specific date of dissolution in addition to the events of dissolution
set forth in section sixty-two of this chapter, the latest date upon
which the registered limited liability partnership is to dissolve; and
(7) the character or purpose of the business of such registered limited
liability partnership. 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 registered limited liability partnership may complete the
remaining publications of the original copy or notice, and the
registered limited liability partnership 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 registered limited liability partnership with the
affidavits of publication of the newspapers annexed thereto has not been
filed with the department of state, the authority of such registered
limited liability partnership 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
registered limited liability partnership 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 registered limited
liability partnership'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 registered limited
liability partnership, or any right or remedy of any other party under
or by virtue of any contract, act or omission of such registered limited
liability partnership, 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 registered limited liability partnership to defend any
action or special proceeding in this state, or result in any partner or
agent of such registered limited liability partnership becoming liable
for the contractual obligations or other liabilities of the registered
limited liability partnership. If, at any time following the suspension
of a registered limited liability partnership's authority to carry on,
conduct or transact business in this state pursuant to this
subparagraph, such registered limited liability partnership 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 registered limited
liability partnership with the affidavits of publication of the
newspapers annexed thereto, to be filed with the department of state,
such suspension of such registered limited liability partnership's
authority to carry on, conduct or transact business shall be annulled.
(B)(1) A registered limited liability partnership 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.
(2) Within twelve months after the effective date of this
subparagraph, a registered limited liability partnership 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 registration 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 registered limited
liability partnership with the affidavits of publication of the
newspapers annexed thereto, with the department of state.
(3) If a registered limited liability partnership that is subject to
the provisions of clause two 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.
(4) The failure of a registered limited liability partnership that is
subject to the provisions of clause two of this subparagraph to fully
comply with the provisions of said clause two or the suspension of such
registered limited liability partnership's authority to carry on,
conduct or transact any business in this state pursuant to clause three
of this subparagraph shall not impair or limit the validity of any
contract or act of such registered limited liability partnership, or any
right or remedy of any other party under or by virtue of any contract,
act or omission of such registered limited liability partnership, 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 registered limited
liability partnership to defend any action or special proceeding in this
state, or result in any partner or agent of such registered limited
liability partnership becoming liable for the contractual obligations or
other liabilities of the registered limited liability partnership.
(5) If, at any time following the suspension of a registered limited
liability partnership's authority to carry on, conduct or transact
business in this state, pursuant to clause three of this subparagraph,
such registered limited liability partnership 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
registered limited liability partnership with the affidavits of
publication of the newspapers annexed thereto, to be filed with the
department of state, such suspension of such registered limited
liability partnership's authority to carry on, conduct or transact
business shall be annulled.
(6) For the purposes of this subparagraph, a registered limited
liability partnership 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 (A) the registered limited liability partnership was
formed on or after January first, nineteen hundred ninety-nine and prior
to such effective date and the registered limited liability partnership
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 (B) the registered limited liability partnership was formed prior to
January first, nineteen hundred ninety-nine, without regard to whether
the registered limited liability partnership 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.
(b) The registration shall be executed by one or more partners of the
partnership without limited partners.
(c) The registration shall be accompanied by a fee of two hundred
dollars.
(d) A partnership without limited partners is registered as a
registered limited liability partnership at the time of the payment of
the fee required by subdivision (c) of this section and the filing of a
completed registration with the department of state or at the later
date, if any, specified in such registration, not to exceed sixty days
from the date of such filing. A partnership without limited partners
that has been registered as a registered limited liability partnership
is for all purposes the same entity that existed before the registration
and continues to be a partnership without limited partners under the
laws of this state. The status of a partnership without limited partners
as a registered limited liability partnership shall not be affected by
changes in the information stated in the registration after the filing
of the registration. If a partnership without limited partners that is a
registered limited liability partnership dissolves, a partnership
without limited partners which is the successor to such registered
limited liability partnership (i) shall not be required to file a new
registration and shall be deemed to have filed the registration filed by
the registered limited liability partnership pursuant to subdivision (a)
of this section, as well as any withdrawal notice filed pursuant to
subdivision (f) of this section, any statement or certificate of consent
filed pursuant to subdivision (g) of this section or any certificate of
amendment filed pursuant to subdivision (j) of this section and (ii)
shall be bound by any revocation of registration pursuant to subdivision
(g) of this section and any annulment thereof of the dissolved
partnership without limited partners that was a registered limited
liability partnership. For purposes of this section, a partnership
without limited partners is a successor to a partnership without limited
partners that was a registered limited liability partnership if a
majority of the total interests in the current profits of such successor
partnership without limited partners are held by partners of the
predecessor partnership without limited partners that was a registered
limited liability partnership who were partners of such predecessor
partnership immediately prior to the dissolution of such predecessor
partnership.
(e) If the signed registration 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 has been paid, the
registration shall be filed and indexed by the department of state.
(f) A registration may be withdrawn by filing with the department of
state a written withdrawal notice executed by one or more partners of
the registered limited liability partnership, with a filing fee of sixty
dollars. A withdrawal notice must include: (i) the name of the
registered limited liability partnership (and if it has been changed
since registration, the name under which it was registered); (ii) the
date the registration was filed with the department of state pursuant to
subdivision (a) of this section; (iii) the address of the registered
limited liability partnership's principal office; (iv) if the withdrawal
of the registered limited liability partnership is to be effective on a
date later than the time of filing, the date, not to exceed sixty days
from the date of such filing, of such proposed effectiveness; (v) a
statement acknowledging that the withdrawal terminates the partnership's
status as a registered limited liability partnership; and (vi) any other
information determined by the registered limited liability partnership.
A withdrawal notice terminates the status of the partnership as a
registered limited liability partnership as of the date of filing the
notice or as of the later date, if any, specified in the notice, not to
exceed sixty days from the date of such filing. The termination of
registration shall not be affected by errors in the information stated
in the withdrawal notice. If a registered limited liability partnership
is dissolved, it shall within thirty days after the winding up of its
affairs is completed file a withdrawal notice pursuant to this
subdivision.
(g) Each registered limited liability partnership shall, within sixty
days prior to the fifth anniversary of the effective date of its
registration and every five years thereafter, furnish a statement to the
department of state setting forth: (i) the name of the registered
limited liability partnership, (ii) the address of the principal office
of the registered limited liability partnership, (iii) 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, which address shall supersede any previous address on file with the
department of state for this purpose, and (iv) a statement that it is
eligible to register as a registered limited liability partnership
pursuant to subdivision (a) of this section. The statement shall be
executed by one or more partners of the registered limited liability
partnership. The statement shall be accompanied by a fee of twenty
dollars if submitted directly to the department of state. The
commissioner of taxation and finance and the secretary of state may
agree to allow registered limited liability partnerships to provide the
statement specified in this subdivision on tax reports filed with the
department of taxation and finance in lieu of statements filed directly
with the secretary of state 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 registered limited liability partnership required
to file the statement specified in 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
subdivision with the department of state. However, each registered
limited liability partnership required to file a statement under this
section must continue to file a statement with the department of state
as required by this section until the registered limited liability
partnership 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 registered limited liability
partnership shall continue to provide annually the statement specified
in this subdivision on its filing fee payment form in lieu of the
statement required by this subdivision. The commissioner of taxation and
finance shall deliver the completed statement specified in this
subdivision to the department of state for filing. The department of
taxation and finance must, to the extent feasible, also include in such
delivery the current name of the registered limited liability
partnership, department of state identification number for such
registered limited liability partnership, 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. If a registered limited liability partnership shall not
timely file the statement required by this subdivision, the department
of state may, upon sixty days' notice mailed to the address of such
registered limited liability partnership as shown in the last
registration or statement or certificate of amendment filed by such
registered limited liability partnership, make a proclamation declaring
the registration of such registered limited liability partnership to be
revoked pursuant to this subdivision. The department of state shall file
the original proclamation in its office and shall publish a copy thereof
in the state register no later than three months following the date of
such proclamation. This shall not apply to registered limited liability
partnerships that have filed a statement with the department of state
through the department of taxation and finance. Upon the publication of
such proclamation in the manner aforesaid, the registration of each
registered limited liability partnership named in such proclamation
shall be deemed revoked without further legal proceedings. Any
registered limited liability partnership whose registration was so
revoked may file in the department of state a statement required by this
subdivision. The filing of such statement shall have the effect of
annulling all of the proceedings theretofore taken for the revocation of
the registration of such registered limited liability partnership under
this subdivision and (1) the registered limited liability partnership
shall thereupon have such powers, rights, duties and obligations as it
had on the date of the publication of the proclamation, with the same
force and effect as if such proclamation had not been made or published
and (2) such publication shall not affect the applicability of the
provisions of subdivision (b) of section twenty-six of this chapter to
any debt, obligation or liability incurred, created or assumed from the
date of publication of the proclamation through the date of the filing
of the statement with the department of state. If, after the publication
of such proclamation, it shall be determined by the department of state
that the name of any registered limited liability partnership was
erroneously included in such proclamation, the department of state shall
make appropriate entry on its records, which entry shall have the effect
of annulling all of the proceedings theretofore taken for the revocation
of the registration of such registered limited liability partnership
under this subdivision and (A) such registered limited liability
partnership shall have such powers, rights, duties and obligations as it
had on the date of the publication of the proclamation, with the same
force and effect as if such proclamation had not been made or published
and (B) such publication shall not affect the applicability of the
provisions of subdivision (b) of section twenty-six of this chapter to
any debt, obligation or liability incurred, created or assumed from the
date of publication of the proclamation through the date of the making
of the entry on the records of the department of state. Whenever a
registered limited liability partnership whose registration was revoked
shall have filed a statement pursuant to this subdivision or if the name
of a registered limited liability partnership was erroneously included
in a proclamation and such proclamation was annulled, the department of
state shall publish a notice thereof in the state register.
(h) The filing of a withdrawal notice by a registered limited
liability partnership pursuant to subdivision (f) of this section, a
revocation of registration pursuant to subdivision (g) of this section
and the filing of a certificate of amendment pursuant to subdivision (j)
of this section shall not affect the applicability of the provisions of
subdivision (b) of section twenty-six of this chapter to any debt,
obligation or liability incurred, created or assumed while the
partnership was a registered limited liability partnership. After a
withdrawal or revocation of registration, the partnership without
limited partners shall for all purposes remain the same entity that
existed during registration and continues to be a partnership without
limited partners under the laws of this state.
(i) The department of state shall remove from its active records the
registration of a registered limited liability partnership whose
registration has been withdrawn or revoked.
(j) A registration or statement filed with the department of state
under this section may be amended or corrected by filing with the
department of state a certificate of amendment executed by one or more
partners of the registered limited liability partnership. No later than
ninety days after (i) a change in the name of the registered limited
liability partnership or (ii) a partner of the registered limited
liability partnership becomes aware that any statement in a registration
or statement was false in any material respect when made or that an
event has occurred which makes the registration or statement inaccurate
in any material respect, the registered limited liability partnership
shall file a certificate of amendment. The filing of a certificate of
amendment shall be accompanied by a fee of sixty dollars. The
certificate of amendment shall set forth: (i) the name of the limited
liability partnership and, if it has been changed, the name under which
it was registered and (ii) the date of filing its initial registration
or statement.
(j-1) 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 registered limited liability partnership 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, and/or who has
been designated as registered agent for such registered limited
liability partnership shall be signed and delivered to the department of
state by such agent. The certificate of change shall set forth: (i) the
name of the registered limited liability partnership and, if it has been
changed, the name under which it was originally filed with the
department of state; (ii) the date of filing of its initial registration
or notice statement; (iii) each change effected thereby; (iv) that a
notice of the proposed change was mailed to the limited liability
partnership 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 limited liability partnership has not objected thereto; and (v)
that the party signing the certificate is the agent of such limited
liability partnership to whose address the secretary of state is
required to mail copies of process, and/or to whose email address the
secretary of state is required to mail a notice of the fact that process
against it has been electronically served upon the secretary of state,
and/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 partnership in
whose behalf such certificate is filed. The certificate of change shall
be accompanied by a fee of five dollars.
(k) The filing of a certificate of amendment pursuant to subdivision
(j) of this section with the department of state shall not alter the
effective date of the registration being amended or corrected.
(l) Except as otherwise provided in any agreement between the
partners, the decision of a partnership without limited partners to
file, withdraw or amend a registration pursuant to subdivision (a), (f)
or (j), respectively, of this section is an ordinary matter connected
with partnership business under subdivision eight of section forty of
this chapter.
(m) A registered limited liability partnership, other than a
registered limited liability partnership 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 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 registered limited liability partnership 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 two-A of article two of the public health
law. In addition to rendering the professional service or services the
partners are authorized to practice in this state, a registered limited
liability partnership may carry on, or conduct or transact any other
business or activities as to which a partnership without limited
partners may be formed. Notwithstanding any other provision of this
section, a registered limited liability partnership (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. Any registered limited liability partnership may invest its
funds in real estate, mortgages, stocks, bonds or any other types of
investments.
(n) No registered limited liability partnership 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 registered limited liability
partnership to render a professional service in this state except
through individuals authorized by law to render such professional
service as individuals in this state.
(o) This section 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.
(p) A certified copy of the registration and of each certificate of
amendment shall be filed by the registered limited liability partnership
with the licensing authority within thirty days after the filing of such
registration or amendment with the department of state.
(q) Each partner of a registered limited liability partnership formed
to provide medical services in this state must be licensed pursuant to
article 131 of the education law to practice medicine in this state and
each partner of a registered limited liability partnership formed to
provide dental services in this state must be licensed pursuant to
article 133 of the education law to practice dentistry in this state.
Each partner of a registered limited liability partnership formed to
provide veterinary services in this state must be licensed pursuant to
article 135 of the education law to practice veterinary medicine in this
state. Each partner of a registered limited liability partnership formed
to provide public accountancy services as a firm, 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. Each partner of a
registered limited liability partnership formed to provide professional
engineering, land surveying, geological services, 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 in this state. Each partner of
a registered limited liability partnership formed to provide licensed
clinical social work services in this state must be licensed pursuant to
article 154 of the education law to practice clinical social work in
this state. Each partner of a registered limited liability partnership
formed to provide creative arts therapy services in this state must be
licensed pursuant to article 163 of the education law to practice
creative arts therapy in this state. Each partner of a registered
limited liability partnership formed to provide marriage and family
therapy services in this state must be licensed pursuant to article 163
of the education law to practice marriage and family therapy in this
state. Each partner of a registered limited liability partnership formed
to provide mental health counseling services in this state must be
licensed pursuant to article 163 of the education law to practice mental
health counseling in this state. Each partner of a registered limited
liability partnership formed to provide psychoanalysis services in this
state must be licensed pursuant to article 163 of the education law to
practice psychoanalysis in this state. Each partner of a registered
limited liability partnership formed to provide applied behavior
analysis service in this state must be licensed or certified pursuant to
article 167 of the education law to practice applied behavior analysis
in this state. A registered limited liability partnership 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 partners of a limited
liability partnership 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, the 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 accounts," or the abbreviations
"CPA" or "CPAs". Each non-licensee owner of a firm that is formed 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.
§ 121-1501. Name of registered limited liability partnership. The
name of each registered limited liability partnership shall contain
without abbreviation the words "Registered Limited Liability
Partnership" or "Limited Liability Partnership" or the abbreviations
"R.L.L.P.", "RLLP", "L.L.P." or "LLP"; provided, however, the
partnership may use any such words or abbreviation, without limitation,
in addition to its registered name.
§ 121-1502. New York registered foreign limited liability partnership.
(a) In order for a foreign limited liability partnership to carry on or
conduct or transact business or activities as a New York registered
foreign limited liability partnership in this state, such foreign
limited liability partnership shall file with the department of state a
notice which shall set forth: (i) the name under which the foreign
limited liability partnership intends to carry on or conduct or transact
business or activities in this state; (ii) the date on which and the
jurisdiction in which it registered as a limited liability partnership;
(iii) the address of the principal office of the foreign limited
liability partnership; (iv) the profession or professions to be
practiced by such foreign limited liability partnership and a statement
that it is a foreign limited liability partnership eligible to file a
notice under this chapter; (v) a designation of the secretary of state
as agent of the foreign limited liability partnership 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 or served upon it. The foreign limited liability
partnership 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; (vi) if the foreign limited
liability partnership is to have a registered agent, its name and
address in this state and a statement that the registered agent is to be
the agent of the foreign limited liability partnership upon whom process
against it may be served; (vii) a statement that its registration as a
limited liability partnership is effective in the jurisdiction in which
it registered as a limited liability partnership at the time of the
filing of such notice; (viii) a statement that the foreign limited
liability partnership is filing a notice in order to obtain status as a
New York registered foreign limited liability partnership; (ix) if the
registration of the foreign limited liability partnership is to be
effective on a date later than the time of filing, the date, not to
exceed sixty days from the date of filing, of such proposed
effectiveness; and (x) any other matters the foreign limited liability
partnership determines to include in the notice. Such notice shall be
accompanied by either (1) a copy of the last registration or renewal
registration (or similar filing), if any, filed by the foreign limited
liability partnership with the jurisdiction where it registered as a
limited liability partnership or (2) a certificate, issued by the
jurisdiction where it registered as a limited liability partnership,
substantially to the effect that such foreign limited liability
partnership has filed a registration as a limited liability partnership
which is effective on the date of the certificate (if such registration,
renewal registration or certificate is in a foreign language, a
translation thereof under oath of the translator shall be attached
thereto). Such notice shall also be accompanied by a fee of two hundred
fifty dollars.
(b) Without excluding other activities which may not constitute the
carrying on or conducting or transacting of business or activities in
this state, for purposes of determining whether a foreign limited
liability partnership is required to file a notice pursuant to
subdivision (a) of this section, a foreign limited liability partnership
shall not be considered to be carrying on or conducting or transacting
business or activities in this state by reason of carrying on in this
state any one or more of the following activities:
(i) maintaining or defending any action or proceeding, whether
judicial, administrative, arbitrative or otherwise, or effecting
settlement thereof or the settlement of claims or disputes;
(ii) holding meetings of its partners; or
(iii) maintaining bank accounts.
The specification in this subdivision does not establish a standard
for activities which may subject a foreign limited liability partnership
to service of process under this article or any other statute of this
state. The filing of a notice pursuant to subdivision (a) of this
section by a foreign limited liability partnership shall not by itself
be deemed to be evidence that such foreign limited liability partnership
is carrying on or conducting or transacting business or activities in
this state.
(c) A notice shall be executed by one or more partners of the foreign
limited liability partnership.
(d) If a signed notice 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 has been paid, the notice shall be
filed and indexed by the department of state. If a foreign limited
liability partnership that is a New York registered foreign limited
liability partnership dissolves, a foreign limited liability partnership
which is the successor to such New York registered foreign limited
liability partnership (i) shall not be required to file a new notice and
shall be deemed to have filed the notice filed by the New York
registered foreign limited liability partnership pursuant to subdivision
(a) of this section, as well as any withdrawal notice filed pursuant to
subdivision (e) of this section, any statement or certificate of consent
filed pursuant to subdivision (f) of this section and any notice of
amendment filed pursuant to subdivision (i) of this section and (ii)
shall be bound by any revocation of status pursuant to subdivision (f)
of this section and any annulment thereof of the dissolved foreign
limited liability partnership that was a New York registered foreign
limited liability partnership. For purposes of this section, a foreign
limited liability partnership is a successor to a foreign limited
liability partnership that was a New York registered foreign limited
liability partnership if a majority of the total interests in the
current profits of such successor foreign limited liability partnership
are held by partners of the predecessor foreign limited liability
partnership that was a New York registered foreign limited liability
partnership who were partners of such predecessor partnership
immediately prior to the dissolution of such predecessor partnership.
(e) A notice may be withdrawn by filing with the department of state a
written withdrawal notice executed by one or more partners of the New
York registered foreign limited liability partnership, with a filing fee
of sixty dollars. A withdrawal notice must include: (i) the name or
names under which the New York registered foreign limited liability
partnership carried on or conducted or transacted business or activities
in this state (and if it has been changed since the filing of the
notice, the name under which it filed such notice); (ii) the date a
notice was filed with the department of state pursuant to subdivision
(a) of this section; (iii) the address of the New York registered
foreign limited liability partnership's principal office and the
jurisdiction in which it is registered as a limited liability
partnership; (iv) if the withdrawal of the New York registered foreign
limited liability partnership is to be effective on a date later than
the time of such filing, the date, not to exceed sixty days from the
date of such filing, of such proposed effectiveness; (v) a statement
acknowledging that the withdrawal terminates the foreign limited
liability partnership's status as a New York registered foreign limited
liability partnership; and (vi) any other information determined by the
New York registered foreign limited liability partnership. A withdrawal
notice terminates the status of the foreign limited liability
partnership as a New York registered foreign limited liability
partnership as of the date of filing of the notice or as of the later
date, if any, specified in the notice, not to exceed sixty days from the
date of such filing. The termination of status shall not be affected by
errors in the information stated in the withdrawal notice. If a New York
registered foreign limited liability partnership ceases to be
denominated as a registered limited liability partnership or limited
liability partnership under the laws of the jurisdiction governing the
agreement under which such New York registered foreign limited liability
partnership operates, it shall within thirty days after the occurrence
of such event file a withdrawal notice pursuant to this subdivision.
(f) (I) Each New York registered foreign limited liability partnership
shall, within sixty days prior to the fifth anniversary of the effective
date of its notice and every five years thereafter, furnish a statement
to the department of state setting forth:
(i) the name under which the New York registered foreign limited
liability partnership is carrying on or conducting or transacting
business or activities in this state, (ii) the address of the principal
office of the New York registered foreign limited liability partnership,
(iii) 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, which address shall supersede any previous
address on file with the department of state for this purpose, and (iv)
a statement that it is a foreign limited liability partnership. The
statement shall be executed by one or more partners of the New York
registered foreign limited liability partnership. The statement shall be
accompanied by a fee of fifty dollars if submitted directly to the
department of state. The commissioner of taxation and finance and the
secretary of state may agree to allow New York registered foreign
limited liability partnerships to provide the statement specified in
this paragraph on tax reports filed with the department of taxation and
finance in lieu of statements filed directly with the secretary of state
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 New York registered
foreign limited liability partnership required to file the statement
specified in this paragraph 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 paragraph directly with the department
of state. However, each New York registered foreign limited liability
partnership required to file a statement under this section must
continue to file a statement with the department of state as required by
this section until the New York registered foreign limited liability
partnership 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 New York registered foreign limited
liability partnership shall continue to provide annually the statement
specified in this paragraph on its filing fee payment form in lieu of
filing the statement required by this paragraph directly with the
department of state. The commissioner of taxation and finance shall
deliver the completed statement specified in this paragraph to the
department of state for filing. The department of taxation and finance
must, to the extent feasible, also include in such delivery the current
name of the New York registered foreign limited liability partnership,
department of state identification number for such New York registered
foreign limited liability partnership, 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. If a New York registered foreign limited liability
partnership shall not timely file the statement required by this
subdivision, the department of state may, upon sixty days' notice mailed
to the address of such New York registered foreign limited liability
partnership as shown in the last notice or statement or certificate of
amendment filed by such New York registered foreign limited liability
partnership, make a proclamation declaring the status of such New York
registered foreign limited liability partnership to be revoked pursuant
to this subdivision. This shall not apply to New York registered foreign
limited liability partnerships that have filed a statement with the
department of state through the department of taxation and finance. The
department of state shall file the original proclamation in its office
and shall publish a copy thereof in the state register no later than
three months following the date of such proclamation. Upon the
publication of such proclamation in the manner aforesaid, the status of
each New York registered foreign limited liability partnership named in
such proclamation shall be deemed revoked without further legal
proceedings. Any New York registered foreign limited liability
partnership whose status was so revoked may file in the department of
state a statement required by this subdivision. The filing of such
statement shall have the effect of annulling all of the proceedings
theretofore taken for the revocation of the status of such New York
registered foreign limited liability partnership under this subdivision
and (1) the New York registered foreign limited liability partnership
shall thereupon have such powers, rights, duties and obligations as it
had on the date of the publication of the proclamation, with the same
force and effect as if such proclamation had not been made or published
and (2) such publication shall not affect the applicability of the laws
of the jurisdiction governing the agreement under which such New York
registered foreign limited liability partnership is operating (including
laws governing the liability of partners) to any debt, obligation or
liability incurred, created or assumed from the date of publication of
the proclamation through the date of the filing of the statement with
the department of state. If, after the publication of such proclamation,
it shall be determined by the department of state that the name of any
New York registered foreign limited liability partnership was
erroneously included in such proclamation, the department of state shall
make appropriate entry on its records, which entry shall have the effect
of annulling all of the proceedings theretofore taken for the revocation
of the status of such New York registered foreign limited liability
partnership under this subdivision and (1) such New York registered
foreign limited liability partnership shall have such powers, rights,
duties and obligations as it had on the date of the publication of the
proclamation, with the same force and effect as if such proclamation had
not been made or published and (2) such publication shall not affect the
applicability of the laws of the jurisdiction governing the agreement
under which such New York registered foreign limited liability
partnership is operating (including laws governing the liability of
partners) to any debt, obligation or liability incurred, created or
assumed from the date of publication of the proclamation through the
date of the making of the entry on the records of the department of
state. Whenever a New York registered foreign limited liability
partnership whose status was revoked shall have filed a statement
pursuant to this subdivision or if the name of a New York registered
foreign limited liability partnership was erroneously included in a
proclamation and such proclamation was annulled, the department of state
shall publish a notice thereof in the state register.
(II) (A) Within one hundred twenty days after the effective date of
the notice filed under subdivision (a) of this section, 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 principal office of the foreign
limited liability partnership 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 foreign limited
liability partnership with the affidavits of publication of such
newspapers annexed thereto, must be filed with the department of state,
with a filing fee of fifty dollars. Notwithstanding any other provision
of law, if the office of the foreign limited liability partnership 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: (l) the name of the
foreign limited liability partnership; (2) the date of filing of such
notice with the department of state; (3) the jurisdiction and date of
its organization; (4) the county within this state, in which the
principal office of the foreign limited liability partnership 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 partnership 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 partnership 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 partnership 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 partnership; (8) the name and address of the
authorized officer in its jurisdiction in which it registered as a
limited liability partnership where a copy of its registration is filed
or, if no public filing of its registration is required by the law of
its jurisdiction of organization, a statement that the foreign limited
liability partnership 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; or (9) the character or purpose of the
business of such foreign limited liability partnership. 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 foreign limited
liability partnership may complete the remaining publications of the
original copy or notice, and the foreign limited liability partnership
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 the effective date of the notice
required to be filed under subdivision (a) of this section, proof of
such publication, consisting of the certificate of publication of the
foreign limited liability partnership 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 partnership 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 partnership 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 partnership'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 foreign
limited liability partnership, or any right or remedy of any other party
under or by virtue of any contract, act or omission of such foreign
limited liability partnership, 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 partnership to
defend any action or special proceeding in this state, or result in any
partner or agent of such foreign limited liability partnership becoming
liable for the contractual obligations or other liabilities of the
foreign limited liability partnership. If, at any time following the
suspension of a foreign limited liability partnership's authority to
carry on, conduct or transact business in this state pursuant to this
subparagraph, such foreign limited liability partnership 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 foreign limited
liability partnership 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 partnership's
authority to carry on, conduct or transact business shall be annulled.
(B)(1) A foreign limited liability partnership which was formed and
filed the notice required to be filed under subdivision (a) of this
section prior to the effective date of this subparagraph, and which
filed a notice and 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.
(2) Within twelve months after the effective date of this
subparagraph, a foreign limited liability partnership which was formed
and filed the notice required to be filed under subdivision (a) of this
section 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 notice 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 foreign limited liability
partnership with the affidavits of publication of the newspapers annexed
thereto, with the department of state.
(3) If a foreign limited liability partnership that is subject to the
provisions of clause two 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.
(4) The failure of a foreign limited liability partnership that is
subject to the provisions of clause two of this subparagraph to fully
comply with the provisions of said clause two or the suspension of such
foreign limited liability partnership's authority to carry on, conduct
or transact any business in this state pursuant to clause three of this
subparagraph shall not impair or limit the validity of any contract or
act of such foreign limited liability partnership, or any right or
remedy of any other party under or by virtue of any contract, act or
omission of such foreign limited liability partnership, 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
partnership to defend any action or special proceeding in this state, or
result in any partner or agent of such foreign limited liability
partnership becoming liable for the contractual obligations or other
liabilities of the foreign limited liability partnership.
(5) If, at any time following the suspension of a foreign limited
liability partnership's authority to carry on, conduct or transact
business in this state, pursuant to clause three of this subparagraph,
such foreign limited liability partnership 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 foreign
limited liability partnership 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 partnership's
authority to carry on, conduct or transact business shall be annulled.
(6) For the purposes of this subparagraph, a foreign limited liability
partnership which was formed and filed the notice required to be filed
under subdivision (a) of this section 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 (A) the foreign limited liability partnership was
formed and filed the notice required to be filed under subdivision (a)
of this section on or after January first, nineteen hundred ninety-nine
and prior to such effective date and the foreign limited liability
partnership 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 (B) the foreign limited liability partnership was
formed and filed the notice required to be filed under subdivision (a)
of this section prior to January first, nineteen hundred ninety-nine,
without regard to whether the foreign limited liability partnership 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.
(g) The filing of a withdrawal notice by a New York registered foreign
limited liability partnership pursuant to subdivision (e) of this
section, a revocation of status pursuant to subdivision (f) of this
section and the filing of a notice of amendment pursuant to subdivision
(i) of this section shall not affect the applicability of the laws of
the jurisdiction governing the agreement under which such foreign
limited liability partnership is operating (including laws governing the
liability of partners) to any debt, obligation or liability incurred,
created or assumed while the foreign limited liability partnership was a
New York registered foreign limited liability partnership. After a
withdrawal or revocation of registration, the foreign limited liability
partnership shall for all purposes continue to be a foreign partnership
without limited partners under the laws of this state.
(h) The department of state shall remove from its active records the
notice of any New York registered foreign limited liability partnership
whose notice has been withdrawn or revoked.
(i) A notice or statement filed with the department of state under
this section may be amended or corrected by filing with the department
of state a notice of amendment executed in accordance with subdivision
(c) of this section. No later than ninety days after (i) a change in the
name of the New York registered foreign limited liability partnership or
(ii) a partner of the New York registered foreign limited liability
partnership becomes aware that any statement in a notice or statement
was false in any material respect when made or that an event has
occurred which makes the notice or statement inaccurate in any material
respect, the New York registered foreign limited liability partnership
shall file a notice of amendment. The filing of a notice of amendment
shall be accompanied by a fee of sixty dollars. The certificate of
amendment shall set forth: (i) the name of the limited liability
partnership and, if it has been changed, the name under which it
originally filed a notice under this section and (ii) the date of filing
its initial registration or statement.
(i-1) 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 New York registered foreign limited liability partnership
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, and/or who has been designated as registered agent of such
registered foreign limited liability partnership shall be signed and
delivered to the department of state by such agent. The certificate of
change shall set forth: (i) the name of the New York registered foreign
limited liability partnership; (ii) the date of filing of its initial
registration or notice statement; (iii) each change effected thereby;
(iv) that a notice of the proposed change was mailed to the limited
liability partnership 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 limited liability partnership has not objected thereto; and
(v) that the party signing the certificate is the agent of such limited
liability partnership to whose address the secretary of state is
required to mail copies of process, and/or to whose email address the
secretary of state is required to mail a notice of the fact that process
against it has been electronically served upon the secretary of state,
and/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 partnership in
whose behalf such certificate is filed. The certificate of change shall
be accompanied by a fee of five dollars.
(j) The filing of a notice of amendment pursuant to subdivision (i) of
this section with the department of state shall not alter the effective
date of the notice being amended or corrected.
(k) Each foreign limited liability partnership carrying on or
conducting or transacting business or activities in this state shall use
a name which contains without abbreviation the words "Registered Limited
Liability Partnership" or "Limited Liability Partnership" or the
abbreviations "R.L.L.P.", "RLLP", "P.L.L.", "PLL", "L.L.P." or "LLP";
provided, however, the partnership may use any such words or
abbreviation, without limitation, in addition to its registered name.
(l) Subject to the constitution of this state, the laws of the
jurisdiction that govern a foreign limited liability partnership shall
determine its internal affairs and the liability of partners for debts,
obligations and liabilities of, or chargeable to, the foreign limited
liability partnership; provided that (i) each partner, employee or agent
of a foreign limited liability partnership who performs professional
services in this state on behalf of such foreign limited liability
partnership 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 foreign limited
liability partnership with all laws, rules and regulations governing the
practice of a profession in this state and (ii) each shareholder,
director, officer, member, manager, partner, employee 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 partner, employee or agent of a
foreign limited liability partnership who performs professional services
in this state on behalf of such foreign limited liability partnership
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 partner,
employee or agent of such foreign limited liability partnership and
shall bear professional responsibility for compliance by such foreign
limited liability partnership with all laws, rules and regulations
governing the practice of a profession in this state. The relationship
of a professional to a foreign limited liability partnership with which
such professional is associated, whether as a partner, 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 counsellor-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. A limited partnership formed under the laws of
any jurisdiction, other than this state, which is denominated as a
registered limited liability partnership or limited liability
partnership under such laws shall be recognized in this state as a
foreign limited partnership but not as a foreign limited liability
partnership or a New York registered foreign limited liability
partnership. Except to the extent provided in article eight of the
limited liability company law, a partnership without limited partners
operating under an agreement governed by the laws of any jurisdiction,
other than this state, which is denominated as a registered limited
liability partnership or a limited liability partnership under such
laws, but is not a foreign limited liability partnership, shall be
recognized in this state as a foreign partnership without limited
partners, but not as a foreign limited liability partnership or a New
York registered foreign limited liability partnership.
(m) A foreign limited liability partnership carrying on or conducting
or transacting business or activities in this state without having filed
a notice pursuant to subdivision (a) of this section may not maintain
any action, suit or special proceeding in any court of this state unless
and until such foreign limited liability partnership shall have filed
such notice and paid all fees that it would have been required to pay
had it filed a notice pursuant to subdivision (a) of this section before
carrying on or conducting or transacting business or activities as a New
York registered foreign limited liability partnership in this state and
shall have filed proof of publication pursuant to subdivision (f) of
this section. The failure of a foreign limited liability partnership
that is carrying on or conducting or transacting business or activities
in this state to comply with the provisions of this section does not
impair the validity of any contract or act of the foreign limited
liability partnership or prevent the foreign limited liability
partnership from defending any action or special proceeding in any court
of this state.
(n) A foreign limited liability partnership, other than a foreign
limited liability partnership 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 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 limited
liability partnership 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 two-A
of article two of the public health law. No foreign limited liability
partnership 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 foreign limited liability partnership may invest its funds in real
estate, mortgages, stocks, bonds or any other type of investments;
provided, further, that a foreign limited liability partnership (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.
(o) No foreign limited liability partnership may render a professional
service in this state except through individuals authorized by law to
render such professional service as individuals in this state.
(p) This section 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.
(q) Each partner of a foreign limited liability partnership which
provides medical services in this state must be licensed pursuant to
article 131 of the education law to practice medicine in the state and
each partner of a foreign limited liability partnership which provides
dental services in the state must be licensed pursuant to article 133 of
the education law to practice dentistry in this state. Each partner of a
foreign limited liability partnership which provides veterinary service
in the state shall be licensed pursuant to article 135 of the education
law to practice veterinary medicine in this state. Each partner of a
foreign limited liability partnership which provides professional
engineering, land surveying, geological services, 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. Each partner of a foreign
limited liability partnership formed to provide public accountancy
services as a firm, 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. Each partner of a foreign limited liability partnership
which provides licensed clinical social work services in this state must
be licensed pursuant to article 154 of the education law to practice
licensed clinical social work in this state. Each partner of a foreign
limited liability partnership which provides creative arts therapy
services in this state must be licensed pursuant to article 163 of the
education law to practice creative arts therapy in this state. Each
partner of a foreign limited liability partnership which provides
marriage and family therapy services in this state must be licensed
pursuant to article 163 of the education law to practice marriage and
family therapy in this state. Each partner of a foreign limited
liability partnership which provides mental health counseling services
in this state must be licensed pursuant to article 163 of the education
law to practice mental health counseling in this state. Each partner of
a foreign limited liability partnership which provides psychoanalysis
services in this state must be licensed pursuant to article 163 of the
education law to practice psychoanalysis in this state. Each partner of
a foreign limited liability partnership which provides applied behavior
analysis services in this state must be licensed or certified pursuant
to article 167 of the education law to practice applied behavior
analysis in this state. A foreign limited liability partnership 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 partners of the foreign
limited liability partnership 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 formed 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 that 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.
§ 121-1503. Transaction of business outside the state. (a) It is the
intent of the legislature that the registration of a partnership without
limited partners as a registered limited liability partnership under
this article shall be recognized beyond the limits of this state and
that such registered limited liability partnership may conduct its
business or activities, carry on its operations, and have and exercise
the powers granted by this article in any state, territory, district or
possession of the United States or in any foreign country and that,
subject to any reasonable registration requirements any such registered
limited liability partnership transacting business outside this state
and the laws of this state governing such registered limited liability
partnership shall be granted the protection of full faith and credit
under section 1 of article IV of the Constitution of the United States.
(b) It is the policy of this state that the internal affairs of a
partnership without limited partners registered as a registered limited
liability partnership under this article and the liability of partners
in a registered limited liability partnership for debts, obligations and
liabilities of, or chargeable to, the registered limited liability
partnership shall be subject to and governed by the laws of this state,
including the provisions of this article.
§ 121-1504. Foreign related limited liability partnership. Any foreign
related limited liability partnership that has filed a certificate of
authority under and satisfied all the requirements of section eight
hundred two of the limited liability company law shall be deemed to have
filed a notice pursuant to section 121-1502 of this chapter until the
fifth anniversary of filing its application for such certificate of
authority, at which time the foreign related limited liability
partnership shall file a notice pursuant to section 121-1502 of this
chapter.
§ 121-1505. Service of process. (a) Service of process on the
secretary of state as agent of a registered limited liability
partnership or New York registered foreign limited liability partnership
under this article 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
a 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 registered limited liability partnership 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 registered limited liability partnership, at
the post office address on file in the department of state specified for
such 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 registered limited liability
partnership or New York registered foreign limited liability partnership
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 against
such registered limited liability partnership or New York registered
foreign limited liability partnership served has been electronically
served on the secretary of state. Service of process on such registered
limited liability partnership or New York registered foreign limited
liability partnership 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
registered limited liability partnership or New York registered foreign
limited liability partnership has been served electronically upon him or
her, to such registered limited liability partnership or New York
registered foreign limited liability partnership 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 registered limited
liability partnership or New York registered foreign limited liability
partnership.
(b) As used in this article, process shall mean judicial process and
all orders, demands, notices or other papers required or permitted by
law to be personally served on a registered limited liability
partnership, for the purpose of acquiring jurisdiction of such
registered limited liability partnership 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.
(c) Nothing in this section shall affect the right to serve process in
any other manner permitted by law.
§ 121-1505-a. Electronic service of process. The secretary of state
shall advise any partnership subject to the laws of this article 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 partnership subject to the laws
of this chapter will continue to receive service of process by mail
unless such partnership 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
partnership at any time and, thereafter, service by mail will resume.
§ 121-1506. Resignation for receipt of process. (a) A registered agent
may resign as such agent. A certificate entitled "Certificate of
resignation of registered agent of ...... (name of limited liability
partnership) under section 121-1506 of the Partnership Law" shall be
signed and delivered to the department of state. It shall set forth:
(1) That he resigns as registered agent for the designated limited
liability partnership.
(2) The date the certificate of registration of the designated limited
liability partnership was filed by the department of state.
(3) That he has sent a copy of the certificate of resignation by
registered mail to the designating limited liability partnership at the
post office address on file in the department of state specified for the
mailing of process or if such address is the address of the registered
agent, then to the office of the designating limited liability
partnership in the jurisdiction of its formation.
(b) The party (or the party's legal representative) whose post address
has been supplied by a limited liability partnership as its address for
process may resign. A certificate entitled "Certificate of Resignation
for Receipt of Process under Section 121-1506(b) of the Partnership 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 partnership and the date that
its certificate of registration was filed by the department of state.
(2) That the address of the party has been designated by the limited
liability partnership 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 partnership 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 partnership, if other than the party filing the
certificate of resignation, for receipt of process, or if the resigning
limited liability partnership has no registered agent, then to the last
address of the designated limited liability partnership, 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 partnership 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 partnership, specifying what
efforts were made.
(4) That the designated limited liability partnership is required to
deliver to the department of state a certificate of amendment providing
for the designation by the limited liability partnership of a new
address and that upon its failure to file such certificate, its
authority to do business in this state shall be suspended.
(c) Upon the failure of the designating limited liability partnership
to file a certificate of amendment providing for the designation by the
limited liability partnership 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.
(d) The filing by the department of state of a certificate of
amendment or the filing of a statement providing for a new address by a
designating limited liability partnership shall annul the suspension and
its authority to do business in this state shall be restored and
continued as if no suspension had occurred.
(e) 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.
(f)(1) In any case in which a limited liability partnership 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
partnership 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 this state to such limited
liability partnership 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 liability
partnership by registered or certified mail with return receipt
requested to the last address of such limited liability partnership
known to the plaintiff.
(3)(i) Where service of a copy of process was effected by personal
service, proof of service shall be by an 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.
(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 partnership, 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 liability
partnership 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 partnership 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 partnership 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.
(g) The filing of a certificate of resignation of a registered agent
pursuant to subdivision (a) of this section shall be accompanied by the
fee of ten dollars, and the filing of a certificate of resignation for
receipt of process pursuant to subdivision (b) of this section shall be
accompanied by the fee of ten dollars.
§ 121-1507. Definitions. For purposes of this article:
(a) "Partnership interest" means: (i) a partner's share of the profits
and losses of a registered limited liability partnership; and (ii) the
partner's right to receive distributions of a registered limited
liability partnership.
(b) "Affidavit of publication" means the affidavit of the printer or
publisher of a newspaper in which a publication required to be filed
pursuant to sections 121-1500 and 121-1502 of this article 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 Partnership 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 partnership) 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 fonts, 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.
(c) "Certificate of publication" means a certificate presented on
behalf of the applicable limited liability partnership to the department
of state together with the affidavits of publication pursuant to section
121-1500 or 121-1502 of this article. The certificate of publication
shall be in a form substantially as follows:
"Certificate of Publication of ______ (name of limited partnership)
Under Section (specify applicable section) of the Partnership Law
The undersigned is the _________ (title) of ___________ (name of
limited liability partnership). The published notices described in the
annexed affidavits of publication contain all of the information
required by the above-mentioned section of the partnership law. The
newspapers described in such affidavits of publication satisfy the
requirements set forth in the partnership 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"
§ 125. Laws repealed. Chapter forty-four of the laws of nineteen
hundred and nine and all other acts or parts of acts inconsistent with
this chapter are hereby repealed.
§ 126. When to take effect. This chapter shall take effect October
first, nineteen hundred and nineteen.