Rules and Regulations

Title 19, Chapter IV, Division of Corporations

This information is not the official version of the Official Compilation of the Rules and Regulations of the State of New York (NYCRR). No representation is made as to its accuracy, nor may it be read into evidence in New York State courts. To ensure accuracy and for evidentiary purposes, reference should be made to the official NYCRR. The Official NYCRR is available from West Publishing: 1-800-344-5009.


Part 145. DAILY REPORTS OF CORPORATION CERTIFICATES
Statutory Authority: Executive Law, §§91, 102)

§ 145.1 Fees charged for furnishing reports.
Except as provided in section 145.2 of this Part, the daily report of documents filed in the Department of State will be furnished to all persons upon application and receipt of payment, in accordance with the established rates set forth in the following schedule:

Single issue $ .75

Quarter-annual subscription 40.00

Semi-annual subscription 75.00

Annual subscription 125.00

§ 145.2 Persons and institutions exempted from paying fee.
Copies of the aforementioned daily reports will be furnished without charge to the Governor; members of the Legislature; heads of State departments or bureaus for their necessary and proper use in the official business of such departments or bureaus; schools; libraries; newspapers and members of the press; and in the discretion of the Secretary of State, to officers of any political subdivision of the State, and institutions not engaged in business for profit.


Part 150. FILING CERTIFICATES
(Statutory authority: Executive Law, §91)


§ 150.1 Document size and backer.
All documents offered for filing must include a backer, there on which appears the exact title of the document and the name and address of the filer. Documents on paper shall be no larger than 81/2 inches by 11 inches. Documents not on paper, where allowed, shall be of a size and in a medium consistent with the technology used by the Department of State to receive, make, and retain the resulting record. Title on the backer must be consistent with the content of the document.

§ 150.2 Legibility and riders.
The department shall decline to file any document that is not legible because the paper weight, ink color, font size, type face, extraneous marks, file format or other quality impairs the ability to make an official record. Documents shall contain no riders other than tax consents and official certificates.

§ 150.3 Separate filing fees.
If several documents are submitted, each should be accompanied by a separate remittance of the respective fee and taxes, if any. Because some documents may take different courses in processing, following this practice will avoid delay that might otherwise result in the return of all documents even though one or more would have been acceptable for filing.

§ 150.4 Certified checks.
All checks in excess of $500 shall be certified.

§ 150.5 Duplicate receipts.
The department shall not issue duplicate receipts except on satisfactory evidence that the original was never received. A request for a duplicate receipt must be made within six months of the date of the receipted transaction. All duplicate receipts will be annotated as such.

§ 150.6 Refunds of overpayment of fee.
(a) No refund for overpayment of fees will be made in the amount of one dollar or less.
(b) Refunds for overpayment of fees paid in the amounts of $1.01 up to and including $5 will only be made upon specific written request. Such request for refund must state the name and address of the payer of the overpayment, the name of the organization for which the overpayment was made, and the date and cash number of the transaction as reflected on the receipt issued by the Division of Corporations.
(c) Refunds for overpayment of fees will automatically be issued in the amounts of $5.01 and up.

§ 150.7 Copies and certificates.
A request for a copy of a record or a request for a certificate shall be in writing. The request shall
specify, by name of organization and document, the record to be copied or the certificate desired.

Part 154. EXPEDITED HANDLING SERVICES
(Statutory authority: Executive Law, §91)

§ 154.1 Availability.
Expedited handling of requests to the Division of Corporations is available where statute authorizes the collection of an additional fee for the purpose.


§ 154.2 Form of requests.
All requests must be made in writing.

§ 154.3 Fee.
All requests must be accompanied by the prescribed fee at the time of the submittal of the instrument. Failure to include said fee shall render the request for expedited handling void. The fee for expedited handling shall be payable separately.

§ 154.4 Requests by mail.
All requests, made by mail or similar means, must be addressed to Attention: Expedited Handling Section, NYS Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231. Any such request received by the division shall be stamped with the hour of receipt thereof, at which time the period of time for performance by the division shall commence. If the request is for the filing
of a certificate for which a preclearance of the proposed name has been obtained, this fact must be stated in the request. A separate request and fee must be submitted each time an instrument is presented to the division.

§ 154.5 Requests by service companies or agents.
(a) Each instrument submitted pursuant to these rules shall have affixed, to the top of each instrument, a form, in the color and size prescribed by the division, which sets forth the requested service, the name of the organization, the name of the service company or agent, and any other information the division may from time to time require.
(b) All filing fees or other charges payable in connection with the instrument must be included with the instrument at the time of submittal. Failure to include said fees shall be reason for rejection and forfeiture of the expedited handling.
(c) All requests shall be delivered to the division by depositing the instrument in the designated boxes at the service counter for this purpose.
(d) The division shall pick up all requests every hour on the hour, beginning at 8 a.m. and continuing through 4 p.m. Each request shall be time-stamped with the hour of receipt thereof, at which time the period for performance by the division shall commence.
(e) If the request is for the filing of a certificate for which the preclearance of the proposed name has been obtained, a copy of the proponent on which the name was approved must be included with the certificate. If a proponent, showing the name has been approved, is included with the certificate, and the proposed name is rejected due to a conflicting name which was on file at the time of the approval,
no fee for expedited handling shall be retained by the division for that submission.
(f) A separate request and fee must be submitted each time an instrument is presented to the division.

§ 154.6 Requests made in person by individuals other than service companies.
The instrument shall be searched, and if applicable, examined by a reviewer. However, no additional processing shall be accomplished at that time without payment of the required expedited handling fee, if the instrument would otherwise be eligible for expedited handling if presented by mail or by a service company. Requests for expedited handling submitted in person, by an individual, shall be processed in
the same manner as those requests received by mail or from a service company. However, the division, in its discretion, may process and complete the request immediately.

§ 154.7 Multiple requests.
(a) A separate request and fee must be submitted for each individual service to be performed and for each individual organization for which the service is requested.
(b) A single request may order more than one of the same document relating to a single organization. In these cases, the fee for expedited handling shall be multiplied by the number of documents ordered.

§ 154.8 Refunds.
The division shall refund any fee collected for which the division did not comply with the time period for performance. Any fee for expedited handling collected for any instrument which has been rejected by the division shall be refunded if it is determined that the rejection was improper or erroneous, and the requirements of these rules had been complied with by the requestor of the services.

Part 155. SALE OF AGGREGATE DATA FROM
COMPUTERIZED INFORMATION SYSTEMS
(Statutory authority: Executive Law, §§91, 96[16])

§ 155.1 Introduction.
Pursuant to various laws, including the Business Corporation Law, the Not-for-Profit Corporation Law, and the General Business Law, filings are made in the Department of State Division of Corporations and State Records from which the department extracts certain information which it compiles and maintains in computerized information systems. Aggregations of the data so maintained
will be provided in accordance with this Part.

§ 155.2 Products.
The Department of State will contract to sell from the contents of its information systems various aggregations of data as denominated by the department. The department will further contract to sell by subscription update services for selected aggregations. The aggregate data and updates will be provided on media and in a format more completely described in a Department of State manual to be specified in the contract. The particular set of data constituting a given denominated aggregation or update also will be specified in the contract.

§ 155.3 Prices.
(a) Aggregate data. The price of the aggregate data denominated "Corporations and Organizations" without update service is $7,500, payable in advance by certified funds. The price of the aggregate data with update service is $16,500 for the initial quarter or part thereof and $9,000 for each subsequent quarter, payable in advance by certified funds. Payment for the initial quarter shall be due upon approval of the contract and for subsequent quarters on or before each January 1st, April 1st, July 1st, and October 1st. Delivery by the department of the aggregate data need be made, and update service need commence, only at the beginning of the department' s quarterly production cycle.
(b) Bulk requests. The price for 100 records or more but less than the aggregate data denominated "Corporations and Organizations" is $100 plus 10 cents for each record in excess of 100. For the purposes of this section, a record means all of the filings by one entity.

§ 155.4 Limitations.
(a) An aggregation is not an official record of the Department of State. Certification of the information contained in an aggregation may be had only from the Department of State. The data is provided for information only. The purchaser or subscriber shall not represent that the information is an official record and shall make any statements and disclosures required by the contract with respect to such information.
(b) All corporations data supplied in accordance with this Part is provided on an "as is" basis. With respect to the purchase by and delivery to the purchaser or subscriber, and the purchaser's or subscriber's receipt, possession and use, sale, resale or transfer of the corporations data in any manner whatsoever, the department and the State of New York make no warranties, guarantees or
representations of any kind, whether express or implied, or arising by custom or trade usage as to any matter whatsoever, without limitation, and specifically make no implied warranty of merchantability, fitness for any particular purpose or use, including but not limited, to adequacy, accuracy, correctness, completeness, currentness, reliability or conformity to any representation, description, sample or
model, except that the department warrants solely that the corporations data initial and quarterly editions are reproductions of the same information then currently maintained by it in its information system.
(c) Without limiting subdivision (b) of this section, the department or the State of New York shall not be liable, in whole or in part, for any errors, omissions, or losses, including but not limited to loss of business opportunity, loss of profits or revenues, loss of data, loss of use or injury to persons or property, claims, liabilities, costs or damages, of any kind whatsoever, including but not limited to actual direct, indirect, special, consequential, incidental, punitive or other damages resulting from, caused by, or arising in connection with the purchase by and delivery to purchaser or subscriber, and the purchaser's or subscriber's possession, use or inability of use, sale, resale, or transfer, in any manner whatsoever, even if the department or the State of New York has been advised of the possibility of such errors, omissions, losses, injuries, claims, liabilities, costs, or other damages.

§ 155.5 Limited access.
Any person may establish an account with the Department of State and thereafter may have on- line access to certain contents of the information systems on a transaction basis. For purposes of this section, a transaction is access to the index of records on file in the Division of Corporations pertaining to a given organization. The charge per transaction shall be 75 cents.


Part 156. NAMES
(Statutory authority: Executive Law, §91)

§ 156.1 Searches.
(a) Name availability searches. A request to search the records of the department for the availability of an organization name shall be in writing and be accompanied by the appropriate fee. If the search reveals that a name is not available, the department in so responding need not state the reason why unless asked in writing to do so. When the reason is that the name conflicts with the name of another
organization, the department need provide no more than one example unless specifically and separately asked to provide additional conflicting names.
(b) Other searches of records. Except for a name availability search, a request to search the records of the department need not be in writing. Unless the required fee accompanies the request, the department shall limit the number of names searched to the number the law allows without fee. To determine if a fee is due, the department shall treat as one all requests received from the same source in
the same business day.
(c) Effect of availability or reservation. By responding that a name is available or by accepting a reservation of a name, the department does not approve the name. Availability or reservation does not imply that the name satisfies any particular requirement of law nor any particular standard of a body with power to grant or withhold its approval, license, or permit or to take any other action. No
expenditure or other commitment should be made in reliance upon the availability of or reservation of a name.

§ 156.2 Standards.
This section furnishes general guidelines used to determine whether a proposed name is acceptable as the name of an entity in the records of the Secretary of State.

(a) Definitions

(1) The term “entity” means a domestic corporation, limited liability company, limited partnership or registered limited liability partnership or foreign corporation, limited liability company, limited partnership or New York registered foreign limited liability partnership.

(2) The term “name” means the real name of a domestic corporation, limited liability company, limited partnership or registered limited liability partnership or the real or fictitious name of a foreign corporation, limited liability company, limited partnership or New York registered foreign limited liability partnership.

(3) The term “existing entity” means a domestic corporation, limited liability company or limited partnership that has not been dissolved, annulled, or had its authority to do business cancelled or revoked, or a foreign corporation, limited liability company or limited partnership that has not surrendered its authority, terminated its existence or had its authority to do business or conduct activities annulled.

(4) “Entity indicator” means the words “corporation”, “incorporated”, “limited”, “limited liability company”, “professional service limited liability company”, “professional service corporation”, “design professional corporation”, “limited partnership”, “limited liability partnership”, “registered limited liability partnership” or any permitted abbreviation thereof used in the name of an entity. An entity indicator must be separate from other words or parts of words in the entity name to be considered an entity indicator.

(5) “Key Word” means a word other than an article of speech, preposition, conjunction, or an entity indicator.

(b) General Matters

(1) Typography. A name may consist of only letters of the English alphabet, Arabic and Roman numerals, and symbols capable of being reproduced on a standard English language keyboard.

(2) Special Characters and Punctuation.

(i) The following special characters will be allowed in the name, however they will not, by themselves, make a name distinguishable:  ampersand (&), asterisk (*), backslash (\), left brace ({), right brace ( }), “greater than” sign (>), and “less than” sign (<).

(ii) The following special characters will be allowed in the name and will, by themselves, make a name distinguishable: “at” sign (@), dollar sign ($), “equal to” sign (=), percentage sign (%), plus sign (+), number sign (#), and cent sign (¢).

(iii) The following punctuation marks will be allowed in the name, however they will not, by themselves, make a name distinguishable:  apostrophe (‘), left bracket ([), right bracket (]), colon (:), comma (,), dash or hyphen (-), exclamation point (!), left parenthesis ((), right parenthesis ()), period (.), question mark (?), single quote mark (‘‘), double quote mark (‘‘ ‘‘), semicolon (;) and slash (/).

(3) Terms indicating form. A name shall contain no more than one entity indicator. An entity indicator of one form shall not be used as part of the name of an entity of a different form. An entity indicator shall not be used as part of an assumed name.

(4) Every initial certificate and every certificate amending the name of an entity shall include an English translation of the entity’s name if the name contains a word or words in a language other than English.

(c) Distinguishable Names

In order to be accepted for filing, a proposed name of a domestic corporation, limited liability company or limited partnership or foreign corporation, limited liability company or limited partnership must be distinguishable from the name of any existing entity and from any reserved name on the records of the Secretary of State. A name is distinguishable if:

(1) Each name contains one or more different letters or numerals, or has a different sequence of letters or numerals, except that adding or deleting the letter “s” to make a word plural, singular, or possessive shall not make a name distinguishable; or

(2) One of the key words is different; or

(3) The key words are the same, but they are in a different order; or

(4) The key word or words are the same, but the spelling of at least one key word is different.

(d) Indistinguishable Names

A proposed name is not distinguishable from the name of any other existing entity or from a reserved name if the only difference between them is one or more of the following:

(1) Differences in punctuation or hyphenation, use of plural or possessive form of the same word, differences in tense, including present versus past tense, or the addition or omission of spaces between words or
letters.

(2) As determined by the Department of State, the addition or omission of any article of speech, preposition or conjunction or use of a contraction of words in the name of the existing entity or reserved name.

(3) As determined by the Department of State, use of the commonly used abbreviation of a word in one name and the spelling out of a word in another name.

(4) The use of special characters instead of spelling out the names of special characters or what they stand for, or vice versa, as determined by the Department of State. The use of the special character shall be considered the equivalent of the spelling of the name of the special character.

(5) Addition or exclusion of special characters other than those listed in section 156.2(b)(2)(ii).

(6) The expression of a number or numbers using letters instead of Arabic Numerals.

(7) The inclusion or exclusion of an entity indicator (e.g., “Corporation,” “Limited Liability Company,” etc.) or any abbreviation thereof.

(8) Addition or omission of the word or abbreviations of “Company” or “Companies.”

(9) Deviations from or derivatives of the same key word, as determined by the Department.

(10) Differences between upper and lower case letters, typeface or font.

(e) The filing of a name does not grant rights or interests in that name.

The Department of State’s role is ministerial. The Secretary of State does not have the power to determine or settle competing claims to a name under other statutes or under common law.

(f) The methodology used by the Department of State to ascertain whether a proposed name is acceptable will not insure that in all instances a name which is unacceptable is rejected. It is the responsibility of the entity to determine to its satisfaction that the proposed name is in compliance with all applicable laws and rules. When a name which has been accepted for filing is later found to be unacceptable, the Department of State will notify the entity that it is required to amend the filed document in order to comply with all applicable statutory and regulatory provisions.
Upon the failure of the entity to amend the filed document within thirty days of such notification, its authority to carry on, conduct or transact business or conduct activities in this state shall be suspended by the Department of State. If, at any time following the suspension of an entity’s authority to carry on, conduct or transact business or conduct activities in this state, pursuant to this paragraph, such entity shall amend its filed document so as to comply with all applicable statutory and regulatory provisions, or if the Department of State shall determine that the filed name is acceptable, the suspension shall be annulled and the entity’s authority to carry on, conduct or transact business or conduct activities in this state shall be restored and continue as if no suspension had occurred.

(g) The conditions set forth in these regulations are not exclusive, and the Secretary of State may exercise discretion in determining whether a proposed name is distinguishable from the real or fictitious name of an existing domestic or foreign authorized organization or a reserved name.

§ 156.3 Fictitious names.
(a) Statement of fictitious name. A fictitious name is the name an organization submits in its application for authority when its real name is not acceptable for authorization. Every foreign organization applying for authority to do business in this State or to engage in activities in this State, whose real name is not acceptable for authorization, shall include a statement in its application or amendment thereto: "The
fictitious name under which the organization shall conduct its business or activities in New York is . . ." , or words to such effect.
(b) Filing an assumed name certificate. A foreign organization authorized under a fictitious name may take an assumed name. In the certificate of assumed name, the organization shall set forth its real name and its fictitious name.
(c) Discontinuance of a fictitious name. When a foreign organization authorized under a fictitious name files an instrument changing its real name to a name which is available in New York, it must discontinue the use of the fictitious name in New York State. The certificate of amendment must contain a statement: "The fictitious name of . . ., under which the organization has conducted its business or activities, is discontinued," or similar words to that effect, combined with a statement deleting the appropriate paragraph or section from the original application for authority or original application as amended. The Department of State is not responsible to notify an authorized foreign organization using a fictitious name when or if its real name becomes available.
(d) Terms indicating form.
(1) A fictitious name shall contain no indicator of organizational form (e.g., corporation, limited partnership, limited liability company, or the respective abbreviation).

§ 156.4 Assumed names.
(a) An assumed name is a name, other than its real name or fictitious name, under which an organization conducts business in this State. An assumed name is commonly referred to as a d/b/a.
(b) Form of certificates. The certificates that may be filed concerning assumed names shall be the Certificate of Assumed Name, which shall pertain to the initial adoption of such a name; Certificate of Amendment of Assumed Name, which shall pertain to changes in the information contained in the original certificate filed; and Certificate of Discontinuance of Assumed Name, which shall pertain to the
termination of the use of the assumed name.
(c) Terms indicating form.
(1) An assumed name shall contain no indicator of organizational form (e.g., corporation, limited partnership, limited liability company, or the respective abbreviation).

§ 156.5 Reconsideration procedure.
An applicant may request reconsideration of any rejection of a proposed name, upon written request addressed to the secretary and marked to the attention of the Director of the Division of Corporations. The applicant shall attach to his request a copy of the rejection, and include a statement of the reasons upon which the applicant seeks approval of the name.

§ 156.6 Applicability.
This Part shall apply to business corporations and not-for-profit corporations, limited partnerships under the Revised Limited Partnership Act, limited liability companies, and their foreign counterparts seeking authority to do business or engage in activities in this State. Section 156.2(c) of this Part shall also apply to registered limited liability partnerships and New York registered foreign limited liability
partnerships.

July 2013