N.Y. General Business Law § 130: Filing of certificates by persons conducting business under assumed name or as partners

§ 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.