2006 New York Code - Affidavits Of Publication.



 
    * §  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


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