New York Division of Corporations

Corporation and LLC filings are handled by this agency of the Department of State, whose address is 41 State Street, Albany NY 12231.

New York differs from most states in that llcs are required to publish notice of formation once each week for six successive weeks in two newspapers in the county where the LLC has its office and file proof of such publication with the Department. There are penalties for failure to publish which may or may not be significant in the individual case. There is, in addition, an express requirement that the members of the LLC adopt a written operating agreement. The Department states "implicitly, an LLC cannot be considered duly formed without" such an operating agreement. The state also has laws requirring the consent of various governmental agencies if certain words are included in the name of the corporation or LLC, or in the event certain types of businesses are conducted by the Corporation or LLC. Consequently, careful consideration must be given to the name of the entity and its stated business, since in the event of ambiguity there is a high likelihood that the Department will construe the filing for the new entity to require the approval of another governmental agency.

For matters not unique to this state, but common to many states, see common concerns.

With respect to the formation of a corporation or an llc, the department of state advises that "... all documents may be drafted by the filer by following the requirements of the appropriate section of New York law", which involve both mandatory and optional provisions. When drafting creation documents, should they include optional material, or only the mandatory privisions, reserving optional material for the Operating Agreement or Bylaws. The fact that amendments to the Certificate or Articles involve additional filing costs favors putting optional material in the Operating Agreement or Bylaws. On the other hand, where there are multiple parties, placing such material in the original documents, thus necessitating amendments to those documents in the event of any change, may afford additional protection to minority participants in the enterprise.