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New York Limited Liability Company Law Section 206 - Affidavits Of Publication.Legal Research Home > New York Lawyer > Limited Liability Company > New York Limited Liability Company Law Section 206 - Affidavits Of Publication. Sponsored Links
* § 206. Affidavits of publication. Within one hundred twenty days
after the effectiveness of the initial articles of organization, a copy
of the same or a notice containing the substance thereof shall be
published once in each week for six successive weeks, in two newspapers
of the county in which the office of the limited liability company is
located, to be designated by the county clerk, one of which newspapers
shall be a newspaper published in the city or town in which the office
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 department of state.
The notice shall include: (1) the name of the limited liability company;
(2) the date of filing of the articles of organization with the
secretary of state; (3) the county within this state, in which the
office of the limited liability company is to be located; (4) a
statement that the secretary of state has been designated as agent of
the limited liability company upon whom process against it may be served
and the post office address within or without this state to which the
secretary of state shall mail a copy of any process against it served
upon him or her; (5) if the limited liability company is to have a
registered agent, his or her name and address within this state and a
statement that the registered agent is to be the agent of the limited
liability company upon whom process against it may be served; (6) if the
limited liability company is to have a specific date of dissolution in
addition to the events of dissolution set forth in section seven hundred
one of this chapter, the latest date upon which the limited liability
company is to dissolve; and (7) the character or purpose of the business
of such limited liability company. Failure to cause such notice to be
published and to file such proof within one hundred twenty days of the
effective date of the articles shall prohibit the limited liability
company from maintaining any action or special proceeding in this state
unless and until such limited liability company causes such notice to be
published and files such proof of publication. The failure of a limited
liability company to cause such notice to be published and to file proof
of publication shall not impair the validity of any contract or act of
the limited liability company or the right of any other party to the
contract to maintain any action or special proceeding thereon, and shall
not prevent the limited liability company from defending any action or
special proceeding in this state.
* NB Effective until June 1, 2006
* § 206. Affidavits of publication. (a) Within one hundred twenty days
after the effectiveness of the initial articles of organization as
determined pursuant to subdivision (d) of section two hundred three of
this article, a copy of the same or a notice containing the substance
thereof shall be published once in each week for four successive weeks,
in two newspapers of the county in which the office of the limited
liability company is intended to be located, one newspaper to be printed
weekly and one newspaper to be printed daily, to be designated by the
county clerk, as though the copy or notice were a notice or
advertisement of judicial proceedings, and proof of such publication,
consisting of the certificate of publication of the limited liability
company with the affidavits of publication of such newspapers annexed
thereto, must be filed with the department of state. Notwithstanding any
other provision of law, if the office of the limited liability company
is located in a county wherein a weekly or daily newspaper of the
county, or both, has not been so designated by the county clerk, then
the publication herein required shall be made in a weekly or daily
newspaper of the county, or both, as the case may be, which is closest
to, such county, provided that any such newspaper meets all the other
requirements of this subdivision. A copy or notice published in a
newspaper other than the newspaper or newspapers designated by the
county clerk shall not be deemed to be one of the publications required
by this subdivision. Notwithstanding any other provision of law, a
limited liability company shall not include for purposes of paragraphs
five-a and five-b of this subdivision, any limited liability company
which is (i) an investment adviser as defined in the Investment Advisers
Act of 1940 or a commodity pool operator or commodity trading advisor as
defined in the Commodity Exchange Act, or (ii) a collective investment
vehicle or any direct or indirect subsidiary and affiliates thereof
sponsored, advised or managed by an investment adviser, commodity pool
operator or commodity trading advisor as set forth in item (i) of this
sentence. The notice shall include: (1) the name of the limited
liability company; (2) the date of filing of the articles of
organization with the department of state and, if the date of formation
is not the date of filing of the articles of organization, the date of
the formation of the limited liability company; (3) the county within
this state, in which the office of the limited liability company is to
be located, and the city, town or village therein together with the
number and street where such office is to be located; (3-a) the city,
town or village therein together with the number and street where such
office is to be located, or, if the street address of such office has
not been determined at the time the notice is prepared for publication,
the following statement: "The street address of the limited liability
company's office has not yet been determined."; (4) a statement that the
secretary of state has been designated as agent of the limited liability
company upon whom process against it may be served and the post office
address within or without this state to which the secretary of state
shall mail a copy of any process against it served upon him or her; (5)
if the limited liability company is to have a registered agent, his or
her name and address within this state and a statement that the
registered agent is to be the agent of the limited liability company
upon whom process against it may be served; (5-a) the names of the ten
persons, or such lesser number of persons as permitted by this paragraph
who are actively engaged in the business and affairs of the limited
liability company and who are members of the limited liability company
having the most valuable membership interests, as such term is defined
in subdivision (r) of section one hundred two of this chapter, in the
aggregate in such company. In complying with the provisions of this
paragraph, the limited liability company may elect to select any one of
the aggregate rights components specified in paragraph (i), (ii) or
(iii) of such subdivision (r) provided that in the event each of the
three component items have less than ten members, such limited liability
company shall select the item which has the greatest number of members;
(5-b) the following statement: "The inclusion of the name of a person in
this notice does not necessarily indicate that such person is personally
liable for the debts, obligations or liabilities of the limited
liability company and such person's liability, if any, under applicable
law is neither increased nor decreased by reason of this notice."; (6)
if the limited liability company is to have a specific date of
dissolution in addition to the events of dissolution set forth in
section seven hundred one of this chapter, the latest date upon which
the limited liability company is to dissolve; and (7) the character or
purpose of the business of such limited liability company. Where, at any
time after completion of the first of the four weekly publications
required by this subdivision and prior to the completion of the fourth
such weekly publication, there is a change in any of the information
contained in the copy or notice as published, the limited liability
company may complete the remaining publications of the original copy or
notice, and the limited liability company shall not be required to
publish any further or amended copy or notice. Where, at any time after
completion of the four weekly publications required by this subdivision,
there is a change to any of the information contained in the copy or
notice as published, no further or amended publication or republication
shall be required to be made. If within one hundred twenty days after
its formation, proof of such publication, consisting of the certificate
of publication of the limited liability company with the affidavits of
publication of the newspapers annexed thereto has not been filed with
the department of state, the authority of such limited liability company
to carry on, conduct or transact any business in this state shall be
suspended, effective as of the expiration of such one hundred twenty day
period. Neither the failure of a limited liability company to cause such
copy or notice to be published and such certificate of publication and
affidavits of publication to be filed with the department of state
within such one hundred twenty day period nor the suspension of such
limited liability company's authority to carry on, conduct or transact
business in this state pursuant to this subdivision shall limit or
impair the validity of any contract or act of such limited liability
company, or any right or remedy of any other party under or by virtue of
any contract, act or omission of such limited liability company, or the
right of any other party to maintain any action or special proceeding on
any such contract, act or omission, or right of such limited liability
company to defend any action or special proceeding in this state. If, at
any time following the suspension of a limited liability company's
authority to carry on, conduct or transact business in this state
pursuant to this subdivision, such limited liability company shall cause
proof of publication in substantial compliance with the provisions
(other than the one hundred twenty day period) of this subdivision,
consisting of the certificate of publication of the limited liability
company with the affidavits of publication of the newspapers annexed
thereto, to be filed with the department of state, such suspension of
such limited liability company's authority to carry on, conduct or
transact business shall be annulled.
(b)(1) A limited liability company which was formed prior to the
effective date of this subdivision and which complied with the
publication and filing requirements of this section as in effect prior
to such effective date shall not be required to make any publication or
republication or any filing under subdivision (a) of this section, and
shall not be subject to suspension pursuant to this section.
(2) Within eighteen months after the effective date of this
subdivision, a limited liability company, which was formed prior to such
effective date, and which did not comply with the publication and filing
requirements of this section as in effect prior to such effective date,
shall publish a copy of its articles of organization or a notice
containing the substance thereof in the manner required (other than the
one hundred twenty day period) by this subdivision as in effect prior to
such effective date and file proof of such publication, consisting of
the certificate of publication of the limited liability company with the
affidavits of publication of the newspapers annexed thereto, with the
department of state.
(3) If a limited liability company that is subject to the provisions
of paragraph two of this subdivision fails to file the required proof of
publication with the department of state within eighteen months after
the effective date of this subdivision, its authority to carry on,
conduct or transact any business in this state shall be suspended,
effective as of the expiration of such eighteen month period.
(4) Neither the failure of a limited liability company that is subject
to the provisions of paragraph two of this subdivision to fully comply
with the provisions of said paragraph two nor the suspension of such
limited liability company's authority to carry on, conduct or transact
any business in this state pursuant to paragraph three of this
subdivision shall impair or limit the validity of any contract or act of
such limited liability company, or any right or remedy of any other
party under or by virtue of any contract, act or omission of such
limited liability company, or the right of any other party to maintain
any action or special proceeding on any such contract, act or omission,
or right of such limited liability company to defend any action or
special proceeding in this state.
(5) If, at any time following the suspension of a limited liability
company's authority to carry on, conduct or transact business in this
state, pursuant to paragraph three of this subdivision, such limited
liability company shall cause proof of publication in substantial
compliance with the provisions (other than the one hundred twenty day
period) of subdivision (a) of this section, consisting of the
certificate of publication of the limited liability company with the
affidavits of publication of the newspapers annexed thereto, to be filed
with the department of state, such suspension of such limited liability
company's authority to carry on, conduct or transact business shall be
annulled.
(6) For the purposes of this subdivision, a limited liability company
which was formed prior to the effective date of this subdivision shall
be deemed to have complied with the publication and filing requirements
of this section as in effect prior to such effective date if (i) the
limited liability company was formed on or after January first, nineteen
hundred ninety-nine and prior to such effective date and the limited
liability company filed at least one affidavit of the printer or
publisher of a newspaper with the department of state at any time prior
to such effective date, or (ii) the limited liability company was formed
prior to January first, nineteen hundred ninety-nine, without regard to
whether the limited liability company did or did not file any affidavit
of the printer or publisher of a newspaper with the secretary of state.
(c) The information in a notice published pursuant to this section
shall be presumed to be in compliance with and satisfaction of the
requirements of this section. In particular, but not by way of
limitation, the list of names of persons included in such notice
pursuant to paragraph five-a of subdivision (a) of this section shall be
presumed to be complete and accurate and to be in compliance with and
satisfaction of the requirements of this section, and neither the
omission of any name or names which should have been included in such
list, nor the inclusion of any name or names which should not have been
included in such list, nor any misspelling of or other irregularity with
respect to any name or names included in such list, shall negate or
otherwise limit or impair the effectiveness of such notice or the
publication thereof, provided that such omission, inclusion, misspelling
or irregularity was not willfully made with the intention of deceiving
the public.
* NB Effective June 1, 2006
Last modified: August 10, 2006 |