§ 802 — Application for authority

§ 802. Application for authority. (a) Before doing business in this\nstate, a foreign limited liability company shall apply for authority to\ndo business in this state by submitting to the department of state (i) a\ncertificate of existence or, if no such certificate is issued by the\njurisdiction of formation, a certified copy of the articles of\norganization of the limited liability company and all subsequent\namendments thereto or, if no articles of organization have been filed, a\ncertified copy of the certificate filed as its organizational basis and\nall amendments thereto (if such certificate or certified copy is in a\nforeign language, a translation in English thereof under oath of the\ntranslator shall be attached thereto) and (ii) an application for\nauthority as a foreign limited liability company entitled "Application\nfor authority of... (name of foreign limited liability company) under\nsection eight hundred two of the Limited Liability Company Law," signed\nand setting forth:\n (1) the name of the foreign limited liability company and, if a\nforeign liability company's name is not acceptable for authorization\npursuant to section two hundred four of this chapter, the fictitious\nname under which it proposes to apply for authority and do business in\nthis state, which name shall be in compliance with section two hundred\nfour of this chapter and shall be used by the foreign limited liability\ncompany in all its dealings with the department of state and in the\nconduct of its business in this state. The provisions of section one\nhundred thirty of the general business law shall not apply to any\nfictitious name filed by a foreign limited liability company pursuant to\nthis section, and a filing under section one hundred thirty of the\ngeneral business law shall not constitute the adoption of a fictitious\nname;\n (2) the jurisdiction and date of its organization;\n (3) the county within this state in which the office of the foreign\nlimited liability company is to be located or if the foreign limited\nliability company shall maintain more than one office in this state, the\ncounty within the state in which the principal office of the foreign\nlimited liability company is to be located;\n (4) a designation of the secretary of state as its agent 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. The limited liability\ncompany may include an email address to which the secretary of state\nshall email a notice of the fact that process against it has been\nelectronically served upon him or her;\n (5) if it is to have a registered agent, his or her name and address\nwithin the state and a statement that the registered agent is to be its\nagent upon whom process may be served;\n (6) the address of the office required to be maintained in the\njurisdiction of its formation by the laws of that jurisdiction or, if\nnot so required, of the principal office of the foreign limited\nliability company;\n * (7) a statement that the foreign limited liability company is in\nexistence in the jurisdiction of its formation at the time of the filing\nof such application; and\n * NB Effective until January 1, 2026\n * (7) a statement that the foreign limited liability company is in\nexistence in the jurisdiction of its formation at the time of the filing\nof such application; and\n * NB Effective January 1, 2026\n * (8) the name and address of the authorized officer in the\njurisdiction of its formation where a copy of its articles of\norganization is filed or, if no public filing of its articles of\norganization is required by the law of the jurisdiction of formation, a\nstatement that the foreign limited liability company shall provide, on\nrequest, a copy thereof with all amendments thereto (if such documents\nare in a foreign language, a translation in English thereof under oath\nof the translator shall be attached thereto), and the name and post\noffice address of the person responsible for providing such copies.\n * NB Effective until January 1, 2026\n * (8) the name and address of the authorized officer in the\njurisdiction of its formation where a copy of its articles of\norganization is filed or, if no public filing of its articles of\norganization is required by the law of the jurisdiction of formation, a\nstatement that the foreign limited liability company shall provide, on\nrequest, a copy thereof with all amendments thereto (if such documents\nare in a foreign language, a translation in English thereof under oath\nof the translator shall be attached thereto), and the name and post\noffice address of the person responsible for providing such copies.\n * NB Effective January 1, 2026\n (b) (i) Within one hundred twenty days after the filing of the\napplication for authority with the department of state, a copy of the\nsame or a notice containing the substance thereof shall be published\nonce in each week for six successive weeks, in two newspapers of the\ncounty within this state in which the office of the foreign limited\nliability company is located, one newspaper to be printed weekly and one\nnewspaper to be printed daily, to be designated by the county clerk.\nWhen such county is located within a city with a population of one\nmillion or more, such designation shall be as though the copy or notice\nwere a notice or advertisement of judicial proceedings. Proof of the\npublication required by this paragraph, consisting of the certificate of\npublication of the foreign limited liability company with the affidavits\nof publication of such newspapers annexed thereto, must be filed with\nthe department of state. Notwithstanding any other provision of law, if\nthe office of the foreign limited liability company is located in a\ncounty wherein a weekly or daily newspaper of the county, or both, has\nnot been so designated by the county clerk, then the publication herein\nrequired shall be made in a weekly or daily newspaper of any county, or\nboth, as the case may be, which is contiguous to, such county, provided\nthat any such newspaper meets all the other requirements of this\nparagraph. A copy or notice published in a newspaper other than the\nnewspaper or newspapers designated by the county clerk shall not be\ndeemed to be one of the publications required by this subdivision. The\nnotice shall include: (l) the name of the foreign limited liability\ncompany; (2) the date of filing of the application for authority with\nthe department of state; (3) the jurisdiction and date of its\norganization; (4) the county within this state, in which the office of\nthe foreign limited liability company is located; (4-a) the street\naddress of the principal business location, if any; (5) a statement that\nthe secretary of state has been designated as agent of the foreign\nlimited liability company upon whom process against it may be served and\nthe post office address within or without this state to which the\nsecretary of state shall mail a copy of any process against it served\nupon him or her; (6) if the foreign limited liability company is to have\na registered agent, his or her name and address within this state and a\nstatement that the registered agent is to be the agent of the foreign\nlimited liability company upon whom process against it may be served;\n(7) the address of the office required to be maintained in the\njurisdiction of its organization by the laws of that jurisdiction or, if\nnot so required, of the principal office of the foreign limited\nliability company; (8) the name and address of the authorized officer in\nits jurisdiction of organization where a copy of its certificate of\norganization is filed or, if no public filing of its certificate of\norganization is required by the law of its jurisdiction of organization,\na statement that the foreign limited liability company shall provide, on\nrequest, a copy thereof with all amendments thereto (if such documents\nare in a foreign language, a translation thereof under oath of the\ntranslator shall be attached thereto), and the name and post office\naddress of the person responsible for providing such copies; and (9) the\ncharacter or purpose of the business of such foreign limited liability\ncompany. Where, at any time after completion of the first of the six\nweekly publications required by this paragraph and prior to the\ncompletion of the sixth such weekly publication, there is a change in\nany of the information contained in the copy or notice as published, the\nforeign limited liability company may complete the remaining\npublications of the original copy or notice, and the foreign limited\nliability company shall not be required to publish any further or\namended copy or notice. Where, at any time after completion of the six\nweekly publications required by this paragraph, there is a change to any\nof the information contained in the copy or notice as published, no\nfurther or amended publication or republication shall be required to be\nmade. If within one hundred twenty days after the filing of its\napplication for authority with the department of state, proof of such\npublication, consisting of the certificate of publication of the foreign\nlimited liability company with the affidavits of publication of the\nnewspapers annexed thereto has not been filed with the department of\nstate, the authority of such foreign limited liability company to carry\non, conduct or transact any business in this state shall be suspended,\neffective as of the expiration of such one hundred twenty day period.\nThe failure of a foreign limited liability company to cause such copy or\nnotice to be published and such certificate of publication and\naffidavits of publication to be filed with the department of state\nwithin such one hundred twenty day period or the suspension of such\nforeign limited liability company's authority to carry on, conduct or\ntransact business in this state pursuant to this paragraph shall not\nlimit or impair the validity of any contract or act of such foreign\nlimited liability company, or any right or remedy of any other party\nunder or by virtue of any contract, act or omission of such foreign\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 foreign limited liability company to defend any action\nor special proceeding in this state, or result in any member, manager or\nagent of such foreign limited liability company becoming liable for the\ncontractual obligations or other liabilities of the foreign limited\nliability company. If, at any time following the suspension of a foreign\nlimited liability company's authority to carry on, conduct or transact\nbusiness in this state pursuant to this paragraph, such foreign limited\nliability company shall cause proof of publication in substantial\ncompliance with the provisions (other than the one hundred twenty day\nperiod) of this paragraph, consisting of the certificate of publication\nof the foreign 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 foreign limited liability\ncompany's authority to carry on, conduct or transact business shall be\nannulled.\n (ii)(1) A foreign limited liability company which was formed and filed\nits application for authority with the department of state prior to the\neffective date of this paragraph and complied with the publication and\nfiling requirements of this subdivision as in effect prior to such\neffective date shall not be required to make any publication or\nrepublication or any filing under paragraph (i) of this subdivision, and\nshall not be subject to suspension pursuant to this subdivision.\n (2) Within twelve months after the effective date of this paragraph, a\nforeign limited liability company which was formed and filed its\napplication for authority with the department of state prior to such\neffective date and which did not comply with the publication and filing\nrequirements of this subdivision as in effect prior to such effective\ndate shall publish a copy of its application for authority or a notice\ncontaining the substance thereof in the manner required (other than the\none hundred twenty day period) by this subdivision as in effect prior to\nsuch effective date and file proof of such publication, consisting of\nthe certificate of publication of the foreign limited liability company\nwith the affidavits of publication of the newspapers annexed thereto,\nwith the department of state.\n (3) If a foreign limited liability company that is subject to the\nprovisions of subparagraph two of this paragraph fails to file the\nrequired proof of publication with the department of state within twelve\nmonths after the effective date of this paragraph, its authority to\ncarry on, conduct or transact any business in this state shall be\nsuspended, effective as of the expiration of such twelve month period.\n (4) The failure of a foreign limited liability company that is subject\nto the provisions of subparagraph two of this paragraph to fully comply\nwith the provisions of said subparagraph two or the suspension of such\nforeign limited liability company's authority to carry on, conduct or\ntransact any business in this state pursuant to subparagraph three of\nthis paragraph shall not impair or limit the validity of any contract or\nact of such foreign limited liability company, or any right or remedy of\nany other party under or by virtue of any contract, act or omission of\nsuch foreign limited liability company, or the right of any other party\nto maintain any action or special proceeding on any such contract, act\nor omission, or right of such foreign limited liability company to\ndefend any action or special proceeding in this state, or result in any\nmember, manager or agent of such foreign limited liability company\nbecoming liable for the contractual obligations or other liabilities of\nthe foreign limited liability company.\n (5) If, at any time following the suspension of a foreign limited\nliability company's authority to carry on, conduct or transact business\nin this state, pursuant to subparagraph three of this paragraph, such\nforeign limited liability company shall cause proof of publication in\nsubstantial compliance with the provisions (other than the one hundred\ntwenty day period) of paragraph (i) of this subdivision, consisting of\nthe certificate of publication of the foreign 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 foreign\nlimited liability company's authority to carry on, conduct or transact\nbusiness shall be annulled.\n (6) For the purposes of this paragraph, a foreign limited liability\ncompany which was formed and filed its application for authority with\nthe department of state prior to the effective date of this paragraph\nshall be deemed to have complied with the publication and filing\nrequirements of this subdivision as in effect prior to such effective\ndate if (i) the foreign limited liability company was formed and filed\nits application for authority with the department of state on or after\nJanuary first, nineteen hundred ninety-nine and prior to such effective\ndate and the foreign limited liability company filed at least one\naffidavit of the printer or publisher of a newspaper with the department\nof state at any time prior to such effective date, or (ii) the foreign\nlimited liability company was formed and filed its application for\nauthority with the department of state prior to January first, nineteen\nhundred ninety-nine, without regard to whether the foreign limited\nliability company did or did not file any affidavit of the printer or\npublisher of a newspaper with the secretary of state.\n (iii) The information in a notice published pursuant to this\nsubdivision shall be presumed to be in compliance with and satisfaction\nof the requirements of this subdivision.\n