New York Consolidated Laws, General Business Law - GBS § 130. Filing of certificates by persons conducting business under assumed name or as partners




1. No person shall hereafter (i) carry on or conduct or transact business in this state under any name or designation other than his or its real name, or (ii) carry on or conduct or transact business in this state as a member of a partnership, unless:

(a) Such person, if other than a corporation, limited partnership or limited liability company, shall file in the office of the clerk of each county in which such business is conducted or transacted a certificate setting forth the name or designation under which and the address within the county at which such business is conducted or transacted, the full name or names of the person or persons conducting or transacting the same, including the names of all partners, with the residence address of each such person, and the age of any person less than eighteen years of age.  Each certificate shall be executed and duly acknowledged by the person or, if there be more than one, by all of the persons conducting the business.

(b) Such person, if a corporation, limited partnership or limited liability company, shall file, together with the fees as set forth in subdivision five of this section, in the office of the secretary of state a certificate setting forth the name or designation under which business is carried on or conducted or transacted, its corporate, limited partnership or limited liability company name, the location including number and street, if any, of its principal place of business in the state, the name of each county in which it does business or intends to do business, and the location including number and street, if any, of each place where it carries on or conducts or transacts business in this state.  Each certificate shall be executed by an officer of the corporation, a general partner of the limited partnership, a member or manager of a limited liability company, or an attorney-in-fact or authorized person for such corporation, limited partnership, or limited liability company, as the case may be.  A corporation which carries on or conducts or transacts business in this state as a member of a partnership or limited liability company shall not be required solely by reason thereof to file the certificate required by this paragraph if the partners shall have filed the certificate required by paragraph (a) of this subdivision.

1-a. As used in this section, unless the context otherwise requires:

(a) “Person” shall mean an individual, partnership, limited partnership, corporation, limited liability company and unincorporated association;

(b) The “real name” of a corporation shall mean its corporate name as set forth in its certificate of incorporation;  the “real name” of a limited partnership shall mean its name as set forth in its certificate of limited partnership;  the “real name” of a limited liability company shall mean its name as set forth in its articles of organization and any generally accepted, understood or recognizable abbreviations of such names.

(c) The use by a corporation, limited partnership or limited liability company of a divisional, departmental or trade name or designation, in conjunction with the real name of the corporation, limited partnership or limited liability company, shall be deemed to be the use of the real name of the corporation, limited partnership or limited liability company, for purposes of this section.

2. (a) No individual, partnership, or unincorporated association shall hereafter use or file a certificate for the use of any name or designation to carry on or conduct or transact business in this state which consists of or includes words, or initials and a word or words, which are or appear to be the full name or names, or the initial or initials and family name of a person or persons, or a colorable simulation thereof, unless:

(1) the words or initials and word or words appearing to be the full name or initials and family name of a person included, are the true full name or the initials and family name of the person or one of the persons conducting the business;  or

(2) the words or initials and words so included, which are or appear to be the full name, or the initials and family name, of any person, have a secondary, historic or geographic meaning or connotation apart from that of a name of a person, and the name or designation so used contains a word or words clearly signifying such secondary, historic or geographic meaning or connotation, or is followed by the abbreviation “a.n.”, and said secondary, historic or geographic meaning or connotation is stated in the certificate;  or

(3) the person or persons conducting the business are successors in interest to the person or persons theretofore using such name or names to carry on or conduct or transact business, in which case the certificate filed shall so state.

(b) Paragraph (a) of this subdivision shall not apply to corporations, limited partnerships, or limited liability companies.

(c) No corporation, limited partnership or limited liability company shall use or file a certificate for the use of any name or designation to carry on or conduct or transact business in this state which consists of or includes a word or words the use of which is prohibited or restricted by subparagraphs three through eleven of paragraph (a) of section three hundred one of the business corporation law or subparagraphs three through nine of paragraph (a) of section three hundred one and paragraph (w) of section four hundred four of the not-for-profit corporation law , or paragraph three of subdivision (a) of section 121-102 of the partnership law , or subdivisions (d) through (i) of section two hundred four of the limited liability company law , respectively, without having obtained any necessary consents or approvals which would permit the use of the word or words pursuant to such laws.

3. Whenever a certificate which has been filed under this section does not accurately set forth the facts required by this section, or within thirty days after there has been a change in such facts, an amended certificate shall be filed which shall identify the original certificate and incorporate the corrections or changes.  If such amended certificate is filed for the purpose of adding or withdrawing the name of any person to the original certificate as a person conducting a business or as a partner, such amended certificate must be executed by such person and by any one or more of the other persons named in the original or last amended certificate, unless otherwise provided by an order of the supreme court.  Any other amended certificate may be executed by any one or more of the persons named therein as a person conducting the business or as a partner or, in the case of a corporation, by an officer of the corporation, in the case of a limited partnership, by a general partner of the limited partnership, or in the case of a limited liability company, by a member or manager of the limited liability company, or by an attorney-in-fact or authorized person for such corporation, limited partnership, or limited liability company, as the case may be.

4. A certified copy of the original certificate, or if an amended certificate has been filed, then of the most recent amended certificate filed shall be conspicuously displayed on the premises at each place in which the business for which the same was filed is conducted.

5. (a)(1) The several county clerks of this state shall keep an alphabetical index of all certificates, provided for herein, together with appropriate notations of the nature of amended certificates and certificates of discontinuance, and for the indexing and filing of such certificates, they shall receive a fee as specified in paragraph two of subdivision (b) of section eight thousand twenty-one of the civil practice law and rules .

(2) A county clerk may adopt a new indexing system utilizing electro-mechanical, electronic or any other method he deems suitable for maintaining the indexes.

(b)(1) The secretary of state shall keep an alphabetical index of all certificates filed pursuant to paragraph (b) of subdivision one of this section, together with appropriate notations of the nature of amended certificates and certificates of discontinuance;  and for the indexing and filing of such certificates, the secretary of state shall receive a fee of twenty-five dollars ($25.00).

(2) The secretary of state shall also collect from each corporation filing an assumed name certificate the fee or fees, as specified in paragraph two of subdivision (b) of section eight thousand twenty-one of the civil practice law and rules , for each county in which the corporation does business or transacts business or intends to do or transact business, as indicated in the certificate.  Any fee or fees collected by the secretary of state for filing a certificate or certificates with a county clerk shall be transmitted to such county clerk together with a copy of such certificate or certificates, for indexing and filing as provided above, within ten (10) business days of the last day of the month in which such fees and certificates were received by the secretary of state.  The secretary of state shall also transmit to the appropriate county clerk or clerks within such ten-day period a copy of any amended certificates or certificates of discontinuance received by the secretary of state for filing in such counties.

6. A copy of a certificate filed under the provisions of this section, duly certified to by the county clerk or secretary of state in whose office the certificate is filed, shall be presumptive evidence in all courts of this state of the facts therein contained;  provided, however, that neither the certificate itself nor the filing thereof shall, for any purpose other than this section, constitute or be construed as an admission by the filing person, or be used as evidence, that such person does or has done business or has carried on, conducted or transacted business in this state or any county therein, or intended to do so.

7. Subdivision one of this section shall not apply to a person who, or a partnership which, has duly filed a certificate of continued use of firm name under article seven of the partnership law, or to a private banker duly authorized by the superintendent of financial services to engage in business pursuant to the provisions of the banking law or to a partnership of attorneys and counsellors-at-law engaged in the practice of their profession, and subdivision three of this section shall not apply to such a person or partnership who has filed a certificate of discontinuance under subdivision ten of this section.

8. The failure to comply with the provisions of this section shall in no way affect the rights of third persons, nor shall this section be deemed or construed to limit the liability of partners under the provisions of the partnership law.

8-a. The acceptance of a certificate by the county clerk or the secretary of state for filing pursuant to the provisions of this section shall not be construed to confer any right to or interest in any trade name;  nor shall any of the provisions of this section be construed to affect the rights to, or the enforcement of any rights to, any trade name acquired at any time under the common law of this state.

9. Any person or persons carrying on, conducting or transacting business as aforesaid, who knowingly fails to comply with the provisions of this section or who knowingly makes a false statement in a certificate filed thereunder shall be guilty of a misdemeanor.  Any person or persons carrying on, conducting or transacting business as aforesaid who fails to comply with the provisions of this section shall be prohibited from maintaining any action or proceeding in any court in this state on any contract, account or transaction made in a name other than its real name until the certificate required by this section has been executed and filed in accordance with the provisions set forth herein.

10. If the business for which a certificate is filed under this section is discontinued, or the conditions under which it is conducted are such that the filing of a certificate in such county or with the secretary of state is no longer required, a certificate of discontinuance may be filed with the county clerk with whom the original certificate was filed or, if a corporation, limited partnership, or limited liability company, with the secretary of state, identifying such certificate and also identifying the amended certificate, if any, last previously filed and certifying the facts by reason of which the filing of a certificate is no longer required.  The certificate of discontinuance shall be executed in the same manner as an original certificate and shall specify the date on which the discontinuance occurred or the conditions under which the business is conducted changed so that the filing of a certificate is no longer required.  The county clerk or, if a corporation, limited partnership, or limited liability company, the secretary of state shall note the discontinuance in the index.  A certificate of discontinuance shall be executed by a majority of the persons named in the original certificate or the amended certificate last previously filed as persons conducting or transacting the business or as partners or, in the case of a corporation, by an officer of the corporation, in the case of a limited partnership, by a general partner of the limited partnership, or in the case of a limited liability company, by a member or manager of the limited liability company, or by an attorney-in-fact or authorized person for such corporation, limited partnership, or limited liability company, as the case may be, provided that if any of them shall be deceased the certificate shall so state and may be executed by a majority of the survivors, or by the executor or administrator of a deceased person named in the original certificate or last previously filed amended certificate as the only person conducting or transacting the business, and provided further that any such signatures may be dispensed with by order of the supreme court.

11. Notwithstanding any other provision of this section, an education corporation may not file a certificate under this section with the secretary of state, unless the consent of the board of regents is endorsed on or annexed thereto.  Nothing in this subdivision shall invalidate a certificate lawfully filed by an education corporation pursuant to this section prior to the effective date of this subdivision.





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