When a limited liability company or limited partnership is formed or qualified in New York, the entity must publish an announcement in two newspapers designated by the appropriate county clerk for six consecutive weeks. Proof that this publication requirement was met (a Certificate of Publication accompanied by “Affidavits of Publication”) must then be filed with the New York Department of State.
Certificates of Publication, as with any filing submitted to the New York Department of State, are subject to review before being entered into the state’s computer system and can be rejected if the contents do not meet the criteria for such filings as established by statute and the Department. Here are some common problems we’ve seen with these filings and helpful tips to avoid them:
- Wrong form: Occasionally, a limited liability company (LLC) publication is submitted on a limited partnership (LP) form or a domestic LLC publication is submitted on a foreign LLC form. To avoid this problem, always check the citation (for example, “…under Section 206 of the Limited Liability Company Law,”) at the top of the affidavit page and compare it to the citation on the Certificate of Publication. They should be the same.
- Missing/incorrect information: All information specified on the publication form regarding the history of the entity must be given and formation/qualification dates must match the state’s records. Note that all of the domestic forms have a blank line for the entity name and another line for an original name or, in the case of a foreign entity, a line for a fictitious name if applicable and a line for the formation/qualification date. Make sure all of the pertinent information is provided.
- Missing/incorrect title of signer: The title of the signer must be as specified in the relevant statute. The first blank line in the body of the LP Certificate of Publication form should contain the title of the signer, the General Partner. The General Partner signs the document and the name of the signer is typed or printed beneath the signature. In the event the General Partner is another entity, insert the name of the individual and the relationship to the entity. An example would be “John Smith, Authorized Person of ABL LLC, General Partner.” The LLC form may have a blank line at the beginning of the body of the document where a title is to be inserted or may have instructions to “check the appropriate box” (“member,” “manager” or “authorized person”). Only one box may be checked. If the form contains a line for a date, do not leave it blank. Note that conformed signatures are acceptable.
- Legibility Issues: The Certificate of Publication, affidavits and text of the newspaper ads must be of sufficient quality to insure proper scanning. The newspaper ads can be a problem as the font used in some of the ads can be very small and the contrast between the print and background can be an issue. To avoid this problem, you can enlarge the ad to two or three times its size or simply type the contents of the ad on a blank sheet of paper as it has been determined by the Department of State that the text of the notice as published in the newspaper may be set forth in an exhibit, and does not necessarily have to be the actual ad.
Checking for these simple errors before submission can greatly increase the possibility of a timely filing for this commonly filed document. (For additional helpful information about New York’s publication requirements, visit the New York Publication Requirements page of our website.)
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.