S T A T E O F N E W Y O R K
________________________________________________________________________
1101
2009-2010 Regular Sessions
I N S E N A T E
January 26, 2009
___________
Introduced by Sen. LANZA -- read twice and ordered printed, and when
printed to be committed to the Committee on Corporations, Authorities
and Commissions
AN ACT to amend the limited liability company law, in relation to elimi-
nating certain publication requirements for limited liability compa-
nies; to amend the partnership law, in relation to eliminating certain
publication requirements for limited partnerships and registered
limited partnerships; and to repeal certain provisions of the limited
liability company law and the partnership law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions (a-1) and (e-1) of section 102 of the limited
liability company law are REPEALED.
S 2. Section 206 of the limited liability company law is REPEALED.
S 3. Subdivision (a) of section 802 of the limited liability company
law, the opening paragraph as amended by chapter 375 of the laws of
1998, paragraph 1 as amended by chapter 643 of the laws of 1995 and
paragraph 4 as amended by chapter 470 of the laws of 1997, is amended to
read as follows:
[(a)] Before doing business in this state, a foreign limited liability
company shall apply for authority to do business in this state by
submitting to the department of state (i) a certificate of existence or,
if no such certificate is issued by the jurisdiction of formation, a
certified copy of the articles of organization of the limited liability
company and all subsequent amendments thereto or, if no articles of
organization have been filed, a certified copy of the certificate filed
as its organizational basis and all amendments thereto (if such certif-
icate or certified copy is in a foreign language, a translation in
English thereof under oath of the translator shall be attached thereto)
and (ii) an application for authority as a foreign limited liability
company entitled "Application for authority of... (name of foreign
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06928-01-9
S. 1101 2
limited liability company) under section eight hundred two of the Limit-
ed Liability Company Law," signed and setting forth:
[(1)] (A) the name of the foreign limited liability company and, if a
foreign liability company's name is not acceptable for authorization
pursuant to section two hundred four of this chapter, the fictitious
name under which it proposes to apply for authority and do business in
this state, which name shall be in compliance with section two hundred
four of this chapter and shall be used by the foreign limited liability
company in all its dealings with the department of state and in the
conduct of its business in this state. The provisions of section one
hundred thirty of the general business law shall not apply to any ficti-
tious name filed by a foreign limited liability company pursuant to this
section, and a filing under section one hundred thirty of the general
business law shall not constitute the adoption of a fictitious name;
[(2)] (B) the jurisdiction and date of its organization;
[(3)] (C) the county within this state in which the office of the
foreign limited liability company is to be located or if the foreign
limited liability company shall maintain more than one office in this
state, the county within the state in which the principal office of the
foreign limited liability company is to be located;
[(4)] (D) 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;
[(5)] (E) if it is to have a registered agent, his or her name and
address within the state and a statement that the registered agent is to
be its agent upon whom process may be served;
[(6)] (F) the address of the office required to be maintained in the
jurisdiction of its formation by the laws of that jurisdiction or, if
not so required, of the principal office of the foreign limited liabil-
ity company;
[(7)] (G) a statement that the foreign limited liability company is in
existence in the jurisdiction of its formation at the time of the filing
of such application; and
[(8)] (H) the name and address of the authorized officer in the juris-
diction of its formation where a copy of its articles of organization is
filed or, if no public filing of its articles of organization is
required by the law of the jurisdiction of formation, a statement that
the foreign limited liability company shall provide, on request, a copy
thereof with all amendments thereto (if such documents are in a foreign
language, a translation in English thereof under oath of the translator
shall be attached thereto), and the name and post office address of the
person responsible for providing such copies.
S 4. Subdivision (b) of section 802 of the limited liability company
law is REPEALED.
S 5. The opening paragraph of subdivision (e) of section 1006 of the
limited liability company law, as amended by chapter 375 of the laws of
1998, is amended to read as follows:
In connection with any conversion approved under subdivision (c) of
this section, the partnership or limited partnership shall file with the
department of state a signed certificate entitled "Certificate of
Conversion of ... (name partnership or limited partnership) to ... (name
of limited liability company) under section one thousand six of the
Limited Liability Company Law" [and shall also satisfy the publication
requirements of section two hundred six of this chapter]. Such certif-
icate shall include either:
S. 1101 3
S 6. Subdivision (s) of section 1101 of the limited liability company
law is REPEALED, and subdivisions (t), (u) and (v) are relettered subdi-
visions (s), (t) and (u).
S 7. Paragraph 1 of subdivision (c) of section 1203 of the limited
liability company law is amended to read as follows:
[(1)] A certified copy of the articles of organization and of each
amendment thereto and restatement thereof shall be filed by the profes-
sional service limited liability company with the licensing authority
within thirty days after the filing of such certificate or amendment
with the department of state.
S 8. Paragraph 2 of subdivision (c) of section 1203 of the limited
liability company law is REPEALED.
S 9. Subdivision (d) of section 1306 of the limited liability company
law is REPEALED.
S 10. Subdivisions (a-1) and (a-2) of section 121-101 of the partner-
ship law are REPEALED.
S 11. Subdivision (c) of section 121-201 of the partnership law is
REPEALED.
S 12. Subdivision (d) of section 121-902 of the partnership law is
REPEALED.
S 13. Subdivision (f) of section 121-1300 of the partnership law is
REPEALED.
S 14. Paragraph (I) of subdivision (a) of section 121-1500 of the
partnership law, as added by chapter 576 of the laws of 1994, the open-
ing paragraph and subparagraph 4 as amended by chapter 643 of the laws
of 1995 and such paragraph as redesignated by chapter 767 of the laws of
2005, is amended to read as follows:
[(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 with-
out 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 regis-
tered 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 THIS subdivi-
sion [(a) of this section];
S. 1101 4
(4) a designation of the secretary of state as agent of the partner-
ship 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;
(5) if the partnership without limited partners is to have a regis-
tered 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 regis-
tration 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 partner-
ship as authorized pursuant to subdivision (d) of section twenty-six of
this chapter; and
(9) any other matters the partnership without limited partners deter-
mines to include in the registration.
S 15. Paragraph (II) of subdivision (a) of section 121-1500 of the
partnership law is REPEALED.
S 16. Paragraph (I) of subdivision (f) of section 121-1502 of the
partnership law, as amended by chapter 643 of the laws of 1995 and as
redesignated by chapter 767 of the laws of 2005, is amended to read as
follows:
[(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 busi-
ness 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 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. The department of state shall file
S. 1101 5
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 certificate of consent certifying that either
a statement required by this subdivision has been filed or accompanies
the certificate of consent and all fees imposed under this chapter on
the New York registered foreign limited liability partnership have been
paid. The filing of such certificate of consent 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 part-
nership 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 partner-
ship 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 certificate of consent. The filing of a certificate of
consent shall be accompanied by a fee of fifty dollars and if accompa-
nied by a statement, the fee required by this subdivision. If, after the
publication of such proclamation, it shall be determined by the depart-
ment 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 thereto-
fore 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 juris-
diction 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 liabil-
ity 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 shall have filed a certificate of consent
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.
S 17. Paragraph (II) of subdivision (f) of section 121-1502 of the
partnership law is REPEALED.
S 18. Section 121-1507 of the partnership law, as amended by chapter
44 of the laws of 2006, is amended to read as follows:
S 121-1507. [Definitions] DEFINITION. For purposes of this article[:
S. 1101 6
(a) "Partnership],"PARTNERSHIP interest" means: [(i)] (A) a partner's
share of the profits and losses of a registered limited liability part-
nership; and [(ii)] (B) 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 elec-
tronic 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"]
S 19. This act shall take effect immediately.