NY LLC L § 802 (2021)
2021 New York Laws LLC - Limited Liability Company Law Article 8 - Foreign Limited Liability Companies 802 - Application for Authority.

§  802.  Application  for authority. (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 certificate 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 limited liability company) under section eight hundred two of the Limited Liability Company Law,"  signed and setting forth:  (1)  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 fictitious 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) the jurisdiction and date of its organization;  (3) 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)  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;   * NB Effective until January 1, 2023   * (4) 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. The limited liability company may include an email address to which  the  secretary  of  state shall  email  a  notice  of  the  fact  that process against it has been electronically served upon him or her;   * NB Effective January 1, 2023  (5) 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) 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 liability company;  (7)  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) the name and address of the authorized officer in the jurisdiction 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.  (b) (i) Within one  hundred  twenty  days  after  the  filing  of  the application  for  authority  with the department of state, 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 within this state in which the  office  of  the  foreign  limited liability company is located, one newspaper to be printed weekly and one newspaper  to  be  printed  daily, to be designated by the county clerk. When such county is located within a  city  with  a  population  of  one million  or more, such designation shall be as though the copy or notice were a notice or advertisement of judicial  proceedings.  Proof  of  the publication required by this paragraph, consisting of the certificate of publication of the foreign 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  foreign  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 any county,  or both,  as the case may be, which is contiguous to, such county, provided that any such  newspaper  meets  all  the  other  requirements  of  this paragraph.  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. The notice shall include: (l) the name  of  the  foreign  limited  liability company;  (2)  the  date of filing of the application for authority with the  department  of  state;  (3)  the  jurisdiction  and  date  of   its organization;  (4)  the county within this state, in which the office of the foreign limited liability  company  is  located;  (4-a)  the  street address of the principal business location, if any; (5) a statement that the  secretary  of  state  has  been  designated as agent of the foreign 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; (6) if the foreign 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 foreign limited liability company upon whom process against it  may  be  served; (7)  the  address  of  the  office  required  to  be  maintained  in the jurisdiction of its organization by the laws of that jurisdiction or, if not so  required,  of  the  principal  office  of  the  foreign  limited liability company; (8) the name and address of the authorized officer in its  jurisdiction  of  organization  where  a copy of its certificate of organization is filed or, if no public  filing  of  its  certificate  of organization is required by the law of its jurisdiction of organization, 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  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; and (9) the  character or purpose of the business of such foreign  limited  liability company.  Where,  at  any  time after completion of the first of the six weekly  publications  required  by  this  paragraph  and  prior  to  the completion  of  the  sixth such weekly publication, there is a change in any of the information contained in the copy or notice as published, the foreign  limited  liability   company   may   complete   the   remaining publications  of  the  original  copy or notice, and the foreign limited liability company shall not  be  required  to  publish  any  further  or amended  copy  or notice. Where, at any time after completion of the six weekly publications required by this paragraph, 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  the  filing  of  its application  for  authority  with the department of state, proof of such publication, consisting of the certificate of publication of the foreign 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 foreign 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. The failure of a foreign 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 or the suspension of such foreign limited liability company's authority to carry  on,  conduct  or transact  business  in  this  state pursuant to this paragraph shall not limit or impair the validity of any contract  or  act  of  such  foreign limited  liability  company,  or  any right or remedy of any other party under or by virtue of any contract, act  or  omission  of  such  foreign 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 foreign limited liability company to defend any action or special proceeding in this state, or result in any member, manager or agent of such foreign limited liability company becoming liable for  the contractual  obligations  or  other  liabilities  of the foreign limited liability company. If, at any time following the suspension of a foreign limited liability company's authority to carry on, conduct  or  transact business  in this state pursuant to this paragraph, such foreign limited liability company  shall  cause  proof  of  publication  in  substantial compliance  with  the  provisions (other than the one hundred twenty day period) of this paragraph, consisting of the certificate of  publication of  the  foreign  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 foreign limited liability company's authority to carry on, conduct or transact business  shall  be annulled.  (ii)(1) A foreign limited liability company which was formed and filed its  application for authority with the department of state prior to the effective date of this paragraph and complied with the  publication  and filing  requirements  of  this  subdivision  as  in effect prior to such effective date  shall  not  be  required  to  make  any  publication  or republication or any filing under paragraph (i) of this subdivision, and shall not be subject to suspension pursuant to this subdivision.  (2) Within twelve months after the effective date of this paragraph, a foreign  limited  liability  company  which  was  formed  and  filed its application for authority with the department of  state  prior  to  such effective  date and which did not comply with the publication and filing requirements of this subdivision as in effect prior  to  such  effective  date  shall  publish a copy of its application for authority 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 foreign limited liability  company with  the  affidavits  of publication of the newspapers annexed thereto, with the department of state.  (3) If a foreign limited liability company  that  is  subject  to  the provisions  of  subparagraph  two  of  this  paragraph fails to file the required proof of publication with the department of state within twelve months after the effective date of  this  paragraph,  its  authority  to carry  on,  conduct  or  transact  any  business  in this state shall be suspended, effective as of the expiration of such twelve month period.  (4) The failure of a foreign limited liability company that is subject to the provisions of subparagraph two of this paragraph to fully  comply with  the  provisions of said subparagraph two or the suspension of such foreign limited liability company's authority to carry  on,  conduct  or transact  any  business  in this state pursuant to subparagraph three of this paragraph shall not impair or limit the validity of any contract or act of such foreign limited liability company, or any right or remedy of any other party under or by virtue of any contract, act or  omission  of such  foreign 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  foreign limited liability company to defend any action or special proceeding in this state, or result in  any member,  manager  or  agent  of  such  foreign limited liability company becoming liable for the contractual obligations or other liabilities  of the foreign limited liability company.  (5)  If,  at  any  time  following the suspension of a foreign limited liability company's authority to carry on, conduct or transact  business in  this  state,  pursuant to subparagraph three of this paragraph, such foreign limited liability company shall cause proof  of  publication  in substantial  compliance  with the provisions (other than the one hundred twenty day period) of paragraph (i) of this subdivision,  consisting  of the  certificate of publication of the foreign 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  foreign limited  liability  company's authority to carry on, conduct or transact business shall be annulled.  (6) For the purposes of this paragraph, a  foreign  limited  liability company  which  was  formed and filed its application for authority with the department of state prior to the effective date  of  this  paragraph shall  be  deemed  to  have  complied  with  the  publication and filing requirements of this subdivision as in effect prior  to  such  effective date  if  (i) the foreign limited liability company was formed and filed its application for authority with the department of state on  or  after January  first, nineteen hundred ninety-nine and prior to such effective date and the foreign  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 foreign limited liability company was  formed  and  filed  its  application  for authority  with the department of state prior to January first, nineteen hundred ninety-nine, without  regard  to  whether  the  foreign  limited liability  company  did  or did not file any affidavit of the printer or publisher of a newspaper with the secretary of state.  (iii)  The  information  in  a  notice  published  pursuant  to   this subdivision  shall be presumed to be in compliance with and satisfaction of the requirements of this subdivision.