§ 1203 — Formation

New York § 1203

• Jurisdiction: New York
• Law LLC: Limited Liability Company Law
• Art. 12: Professional Service Limited Liability Companies

Text

§ 1203. Formation. (a) Notwithstanding the education law or any other\nprovision of law, one or more professionals each of whom is authorized\nby law to render a professional service within the state, or one or more\nprofessionals, at least one of whom is authorized by law to render a\nprofessional service within the state, may form, or cause to be formed,\na professional service limited liability company for pecuniary profit\nunder this article for the purpose of rendering the professional service\nor services as such professionals are authorized to practice. With\nrespect to a professional service limited liability company formed to\nprovide medical services as such services are defined in article 131 of\nthe education law, each member of such limited liability company must be\nlicensed pursuant to article 131 of the education law to practice\nmedicine in this state. With respect to a professional service limited\nliability company formed to provide dental services as such services are\ndefined in article 133 of the education law, each member of such limited\nliability company must be licensed pursuant to article 133 of the\neducation law to practice dentistry in this state. With respect to a\nprofessional service limited liability company formed to provide\nveterinary services as such services are defined in article 135 of the\neducation law, each member of such limited liability company must be\nlicensed pursuant to article 135 of the education law to practice\nveterinary medicine in this state. With respect to a professional\nservice limited liability company formed to provide professional\nengineering, land surveying, architectural, landscape architectural\nand/or geological services as such services are defined in article 145,\narticle 147 and article 148 of the education law, each member of such\nlimited liability company must be licensed pursuant to article 145,\narticle 147 and/or article 148 of the education law to practice one or\nmore of such professions in this state. With respect to a professional\nservice limited liability company formed to provide licensed clinical\nsocial work services as such services are defined in article 154 of the\neducation law, each member of such limited liability company shall be\nlicensed pursuant to article 154 of the education law to practice\nlicensed clinical social work in this state. With respect to a\nprofessional service limited liability company formed to provide\ncreative arts therapy services as such services are defined in article\n163 of the education law, each member of such limited liability company\nmust be licensed pursuant to article 163 of the education law to\npractice creative arts therapy in this state. With respect to a\nprofessional service limited liability company formed to provide\nmarriage and family therapy services as such services are defined in\narticle 163 of the education law, each member of such limited liability\ncompany must be licensed pursuant to article 163 of the education law to\npractice marriage and family therapy in this state. With respect to a\nprofessional service limited liability company formed to provide mental\nhealth counseling services as such services are defined in article 163\nof the education law, each member of such limited liability company must\nbe licensed pursuant to article 163 of the education law to practice\nmental health counseling in this state. With respect to a professional\nservice limited liability company formed to provide psychoanalysis\nservices as such services are defined in article 163 of the education\nlaw, each member of such limited liability company must be licensed\npursuant to article 163 of the education law to practice psychoanalysis\nin this state. With respect to a professional service limited liability\ncompany formed to provide applied behavior analysis services as such\nservices are defined in article 167 of the education law, each member of\nsuch limited liability company must be licensed or certified pursuant to\narticle 167 of the education law to practice applied behavior analysis\nin this state. In addition to engaging in such profession or\nprofessions, a professional service limited liability company may engage\nin any other business or activities as to which a limited liability\ncompany may be formed under section two hundred one of this chapter.\nNotwithstanding any other provision of this section, a professional\nservice limited liability company (i) authorized to practice law may\nonly engage in another profession or business or activities or (ii)\nwhich is engaged in a profession or other business or activities other\nthan law may only engage in the practice of law, to the extent not\nprohibited by any other law of this state or any rule adopted by the\nappropriate appellate division of the supreme court or the court of\nappeals.\n (b) The articles of organization of a professional service limited\nliability company shall meet the requirements of this chapter and (i)\nshall state the profession or professions to be practiced by such\nlimited liability company and (A) the names and residence addresses of\nall individuals who are to be the original members and the original\nmanagers, if any, of such limited liability company, and (B) the names\nand residence addresses or, if none, the business address of all\nshareholders, directors, officers, members, managers and partners of all\nprofessional service corporations, foreign professional service\ncorporations, professional service limited liability companies, foreign\nprofessional service limited liability companies, registered limited\nliability partnerships, foreign limited liability partnerships, and\nprofessional partnerships who are to be the original members or\nmanagers, if any, who are individuals of such limited liability company,\n(ii) shall have attached thereto a certificate or certificates issued by\nthe licensing authority or by the comparable authority of another state\ncertifying that each of the proposed members and managers, if any, who\nare individuals is authorized by law to practice a profession that such\nlimited liability company is being formed to practice and, if\napplicable, that one or more of such individuals are authorized to\npractice within the state each profession that such limited liability\ncompany will be authorized to practice, and (iii) if such proposed\nmember or manager, if any, is a professional service corporation,\nforeign professional service corporation, professional service limited\nliability company, foreign professional service limited liability\ncompany, registered limited liability partnership, foreign limited\nliability partnership or professional partnership, (A) such certificate\nor certificates issued by the licensing authority or by the comparable\nauthority of another state shall certify either (1) that each proposed\nmember or manager is authorized by law to practice a profession that\nsuch limited liability company is being formed to practice and, if\napplicable, that each shareholder, member or partner of such proposed\nmember or manager is authorized by law to render a professional service\nwithin the state or (2) that one or more of such proposed members and\none or more of such proposed managers, are authorized to practice within\nthe state each profession that such limited liability company will be\nauthorized to practice and that one or more of the shareholders, members\nor partners of such proposed members or managers are authorized to\npractice within the state each profession that such limited liability\ncompany will be authorized to practice within the state and (B) there\nshall be attached to the articles of organization of the professional\nservice limited liability company a certificate by an authorized officer\nof the jurisdiction of its formation that the professional service\ncorporation, foreign professional service corporation, professional\nservice limited liability company, foreign professional service limited\nliability company, registered limited liability partnership or foreign\nlimited liability partnership is validly existing and, in the case of a\nforeign professional service corporation, foreign professional service\nlimited liability company or foreign limited liability partnership, a\ncertificate from the secretary of state that such foreign professional\nservice corporation, foreign professional service limited liability\ncompany or foreign limited liability partnership is authorized to do\nbusiness under article fifteen-A of the business corporation law, under\narticle thirteen of this chapter or under article eight-B of the\npartnership law, as the case may be.\n (c) (1) A certified copy of the articles of organization and of each\namendment thereto and restatement thereof shall be filed by the\nprofessional service limited liability company with the licensing\nauthority within thirty days after the filing of such certificate or\namendment with the department of state.\n (2) (A) Within one hundred twenty days after the filing of the\narticles of organization, a copy of the same or a notice containing the\nsubstance thereof shall be published once in each week for six\nsuccessive weeks, in two newspapers of the county in which the office of\nthe professional service limited liability company is located, one\nnewspaper to be printed weekly and one newspaper to be printed daily, to\nbe designated by the county clerk. When such county is located within a\ncity with a population of one million or more, such designation shall be\nas though the copy or notice were a notice or advertisement of judicial\nproceedings. Proof of the publication required by this subparagraph,\nconsisting of the certificate of publication of the professional service\nlimited liability company with the affidavits of publication of such\nnewspapers annexed thereto, be filed with the department of state.\nNotwithstanding any other provision of law, if the office of the\nprofessional service limited liability company is located in a county\nwherein a weekly or daily newspaper of the county, or both, has not been\nso designated by the county clerk, then the publication herein required\nshall be made in a weekly or daily newspaper of any county, or both, as\nthe case may be, which is contiguous to, such county, provided that any\nsuch newspaper meets all the other requirements of this subparagraph. A\ncopy or notice published in a newspaper other than the newspaper or\nnewspapers designated by the county clerk shall not be deemed to be one\nof the publications required by this subparagraph. The notice shall\ninclude: (i) the name of the professional service limited liability\ncompany; (ii) the date of filing of the articles of organization with\nthe department of state; (iii) the county within this state, in which\nthe office of the professional service limited liability company is\nlocated; (iii-a) the street address of the principal business location,\nif any; (iv) a statement that the secretary of state has been designated\nas agent of the professional service limited liability company upon whom\nprocess against it may be served and the post office address within or\nwithout this state to which the secretary of state shall mail a copy of\nany process against it served upon him or her; (v) if the professional\nservice limited liability company is to have a registered agent, his or\nher name and address within this state and a statement that the\nregistered agent is to be the agent of the professional service limited\nliability company upon whom process against it may be served; (vi) if\nthe professional service limited liability company is to have a specific\ndate of dissolution in addition to the events of dissolution set forth\nin section seven hundred one of this chapter, the latest date upon which\nthe professional service limited liability company is to dissolve; and\n(vii) the character or purpose of the business of such professional\nservice limited liability company. Where, at any time after completion\nof the first of the six weekly publications required by this\nsubparagraph and prior to the completion of the sixth such weekly\npublication, there is a change in any of the information contained in\nthe copy or notice as published, the professional service limited\nliability company may complete the remaining publications of the\noriginal copy or notice, and the professional service limited liability\ncompany shall not be required to publish any further or amended copy or\nnotice. Where, at any time after completion of the six weekly\npublications required by this subparagraph, there is a change to any of\nthe information contained in the copy or notice as published, no further\nor amended publication or republication shall be required to be made. If\nwithin one hundred twenty days after its formation, proof of such\npublication, consisting of the certificate of publication of the\nprofessional service limited liability company with the affidavits of\npublication of the newspapers annexed thereto has not been filed with\nthe department of state, the authority of such professional service\nlimited liability company to carry on, conduct or transact any business\nin this state shall be suspended, effective as of the expiration of such\none hundred twenty day period. The failure of a professional service\nlimited liability company to cause such copy or notice to be published\nand such certificate of publication and affidavits of publication to be\nfiled with the department of state within such one hundred twenty day\nperiod or the suspension of such professional service limited liability\ncompany's authority to carry on, conduct or transact business in this\nstate pursuant to this subparagraph shall not limit or impair the\nvalidity of any contract or act of such professional service limited\nliability company, or any right or remedy of any other party under or by\nvirtue of any contract, act or omission of such professional service\nlimited liability company, or the right of any other party to maintain\nany action or special proceeding on any such contract, act or omission,\nor right of such professional service limited liability company to\ndefend any action or special proceeding in this state, or result in any\nmember, manager or agent of such professional service limited liability\ncompany becoming liable for the contractual obligations or other\nliabilities of the professional service limited liability company. If,\nat any time following the suspension of a professional service limited\nliability company's authority to carry on, conduct or transact business\nin this state pursuant to this subparagraph, such professional service\nlimited liability company shall cause proof of publication in\nsubstantial compliance with the provisions (other than the one hundred\ntwenty day period) of this subparagraph, consisting of the certificate\nof publication of the professional service limited liability company\nwith the affidavits of publication of the newspapers annexed thereto, to\nbe filed with the department of state, such suspension of such\nprofessional service limited liability company's authority to carry on,\nconduct or transact business shall be annulled.\n (B)(i) A professional service limited liability company which was\nformed prior to the effective date of this subparagraph and which\ncomplied with the publication and filing requirements of this paragraph\nas in effect prior to such effective date shall not be required to make\nany publication or republication or any filing under subparagraph (A) of\nthis paragraph, and shall not be subject to suspension pursuant to this\nparagraph.\n (ii) Within twelve months after the effective date of this\nsubparagraph, a professional service limited liability company which was\nformed prior to such effective date and which did not comply with the\npublication and filing requirements of this paragraph as in effect prior\nto such effective date shall publish a copy of its articles of\norganization or a notice containing the substance thereof in the manner\nrequired (other than the one hundred twenty day period) by this\nparagraph as in effect prior to such effective date and file proof of\nsuch publication, consisting of the certificate of publication of the\nprofessional service limited liability company with the affidavits of\npublication of the newspapers annexed thereto, with the department of\nstate.\n (iii) If a professional service limited liability company that is\nsubject to the provisions of clause (ii) of this subparagraph fails to\nfile the required proof of publication with the department of state\nwithin twelve months after the effective date of this subparagraph, its\nauthority to carry on, conduct or transact any business in this state\nshall be suspended, effective as of the expiration of such twelve month\nperiod.\n (iv) The failure of a professional service limited liability company\nthat is subject to the provisions of clause (ii) of this subparagraph to\nfully comply with the provisions of said clause (ii) or the suspension\nof such professional service limited liability company's authority to\ncarry on, conduct or transact any business in this state pursuant to\nclause (iii) of this subparagraph shall not impair or limit the validity\nof any contract or act of such professional service limited liability\ncompany, or any right or remedy of any other party under or by virtue of\nany contract, act or omission of such professional service limited\nliability company, or the right of any other party to maintain any\naction or special proceeding on any such contract, act or omission, or\nright of such professional service limited liability company to defend\nany action or special proceeding in this state, or result in any member,\nmanager or agent of such professional service limited liability company\nbecoming liable for the contractual obligations or other liabilities of\nthe professional service limited liability company.\n (v) If, at any time following the suspension of a professional service\nlimited liability company's authority to carry on, conduct or transact\nbusiness in this state, pursuant to clause (iii) of this subparagraph,\nsuch professional service limited liability company shall cause proof of\npublication in substantial compliance with the provisions (other than\nthe one hundred twenty day period) of subparagraph (A) of this\nparagraph, consisting of the certificate of publication of the\nprofessional service limited liability company with the affidavits of\npublication of the newspapers annexed thereto, to be filed with the\ndepartment of state, such suspension of such professional service\nlimited liability company's authority to carry on, conduct or transact\nbusiness shall be annulled.\n (vi) For the purposes of this subparagraph, a professional service\nlimited liability company which was formed prior to the effective date\nof this subparagraph shall be deemed to have complied with the\npublication and filing requirements of this paragraph as in effect prior\nto such effective date if (i) the professional service limited liability\ncompany was formed on or after January first, nineteen hundred\nninety-nine and prior to such effective date and the professional\nservice limited liability company filed at least one affidavit of the\nprinter or publisher of a newspaper with the department of state at any\ntime prior to such effective date, or (ii) the professional service\nlimited liability company was formed prior to January first, nineteen\nhundred ninety-nine, without regard to whether the professional service\nlimited liability company did or did not file any affidavit of the\nprinter or publisher of a newspaper with the secretary of state.\n (C) The information in a notice published pursuant to this paragraph\nshall be presumed to be in compliance with and satisfaction of the\nrequirements of this paragraph.\n (d) A professional service limited liability company, other than a\nprofessional service limited liability company authorized to practice\nlaw, shall be under the supervision of the regents of the university of\nthe state of New York and be subject to disciplinary proceedings and\npenalties, and its articles of organization shall be subject to\nsuspension, revocation or annulment for cause, in the same manner and to\nthe same extent as is provided with respect to individuals and their\nlicenses, certificates and registrations in title eight of the education\nlaw relating to the applicable profession. Notwithstanding the\nprovisions of this subdivision, a professional service limited liability\ncompany authorized to practice medicine shall be subject to the\npre-hearing procedures and hearing procedures as are provided with\nrespect to individual physicians and their licenses in Title II-A of\narticle two of the public health law.\n (e) A professional service limited liability company authorized to\npractice law shall be subject to the regulation and control of, and its\narticles of organization shall be subject to suspension, revocation or\nannulment for cause by, the appellate division of the supreme court and\nthe court of appeals in the same manner and to the same extent provided\nin the judiciary law with respect to individual attorneys and\ncounselors-at-law. Such limited liability company need not qualify for\nany certification under section four hundred sixty-four of the judiciary\nlaw, take an oath of office under section four hundred sixty-six of the\njudiciary law or register under section four hundred sixty-seven of the\njudiciary law.\n (f) The order of suspension, revocation or annulment of the articles\nof organization of a professional service limited liability company\npursuant to subdivisions (d) and (e) of this section shall be effective\nupon the filing of such order with the department of state.\n