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The New York LLC operating agreement is a required legal document for all LLCs formed in New York, including both single and multi-member LLCs. The agreement outlines rules and guidelines for the operation of the business and each member’s rights and responsibilities.

From NY LLC L § 102 (2019):

(u) “Operating agreement” means any written agreement of the members concerning the business of a limited liability company and the conduct of its affairs and complying with section four hundred seventeen of this chapter.

New York Operating Agreement Law

Per NY LLC L § 417 (2019):

(a) Subject to the provisions of this
chapter, the members of a limited liability company shall adopt a written operating agreement that contains any provisions not inconsistent with law or its articles of organization relating to (i) the business of the limited liability company, (ii) the conduct of its affairs and (iii) the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents, as the case may be.

The operating agreement may set forth a provision eliminating or limiting the personal liability of managers to the limited liability company or its members for damages for any breach of duty in such capacity, provided that no such provision shall eliminate or limit:

(1) the liability of any manager if a judgment or other final adjudication adverse to him or her establishes that his or her acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally
entitled or that with respect to a distribution the subject of subdivision (a) of section five hundred eight of this chapter his or her acts were not performed in accordance with section four hundred nine of this article; or

(2) the liability of any manager for any act or omission prior to the adoption of a provision authorized by this subdivision.

(b) The operating agreement of a limited liability company may be amended from time to time as provided therein; provided, however, that, except as otherwise provided in the operating agreement or the articles of organization, without the written consent of each member adversely affected thereby, (i) no amendment of the operating agreement or (ii) to the extent any provision concerning (A) the obligations of any member to make contributions, (B) the allocation for tax purposes of any items of income, gain, loss, deduction or credit, (C) the manner of computing the distributions of any member or (D) the compromise of an obligation of a member to make a contribution is contained in the articles of organization, no amendment of such provision in the articles of organization, shall be made that (i) increases the obligations of any member to make contributions, (ii) alters the allocation for tax purposes of any items of income, gain, loss, deduction or credit, (iii) alters the manner of computing the distributions of any member or (iv) allows the obligation of a member to make a contribution to be compromised by consent of less than all the members.

(c) An operating agreement may be entered into before, at the time of or within ninety days after the filing of the articles of organization. Regardless of whether such agreement was entered into before, at the time of or after such filing, such agreement, may be effective upon the formation of the limited liability company or at such later time or date as provided in the operating agreement; provided, however, under no circumstances shall an operating agreement become effective prior to the formation of such company.

Forming an LLC in New York

  1. Conduct a name search
  2. Choose a registered agent
  3. File formation articles
  4. Publish Articles or Notice of Formation in Newspaper
  5. Draft an operating agreement

To qualify as an LLC, all New York LLCs need a legally registered business name, which must be distinguishable or unique from all other businesses registered within the state.

The name must also include one of the following designators at the end of the title to identify the formation as a LLC:

  • LLC
  • L.L.C.
  • Limited Liability Company

The name may include restricted words that relate to the business type or profession (university, attorney, bank), as long as a licensed practitioner is part of the LLC.

The name cannot include government agencies such as Treasury, CIA, FBI, etc. or different designators for different business types.

To conduct the name search, use the New York Division of Corporations Business Entity Search website.

Step 2: Choose Your Registered Agent

Each New York LLC formation is required to choose a registered agent to represent the company in the state of New York. This agent assumes responsibility for receiving service of
process such as lawsuits or other important business documentation.

The registered agent may be a business that is authorized to do business in New York, or an individual that meets the following requirements:

  • Be 18 years or older
  • Be available during business hours (9-5)
  • Non-PO box address in New York

When using a registered agent service, the agent must simply be authorized to do business in New York.

Step 3: File Your Formation Articles

New York requires Articles of Organization to be filed with the state in order to form a LLC. Both domestic (in-state LLCs) and foreign (LLCs from out of state) formations need to file articles, with different requirements and procedures for each.

If filing online, note that the Online Filing System will be available Monday-Friday from 6AM to 7:30PM EST, except on legal holidays.

Online Filing (Domestic):

Mailed Filing (Domestic):

  • $200 filing fee
  • Turnaround time: 3-5 business days upon receipt
  • Fill out the form online or after printing and mail to:

Department of State Division of Corporations
State Records and Uniform Commercial Code
One Commerce Plaza
99 Washington Ave.
Albany, NY 12231

Foreign LLCs expanding to New York must file an Application for Authority along with a Certificate of Existence, which is filed by mail.

Mailed Filing (Foreign):

  • $250 filing fee (plus optional $25 expedited processing fee)
  • Turnaround time: 3-5 business days upon receipt
  • Complete the form, include a Certificate of Existence from the original stable of formation, and mail to:

Department of State Division of Corporations
State Records and Uniform Commercial Code
One Commerce Plaza
99 Washington Ave.
Albany, NY 12231

Step 4: Publish Articles or Notice of Formation in Newspaper

New York state requires new LLC formations to publish a notice (or Articles of Organization) in a weekly and daily newspaper within the county where the LLC is being formed for a period of 6 successive weeks. The county clerk will provide the newspapers to be used for publication, who will provide an Affidavit of Publication that should be filed alongside a Certificate of Publication.

Note that there is an incurred cost for publication that depends on the county your business is filed in.

The Certificate of Publication has a $50 filing fee and must be sent to:

Department of State Division of Corporations
State Records and Uniform Commercial Code
One Commerce Plaza
99 Washington Ave.
Albany, NY 12231

Step 5: Draft a New York Operating Agreement

As a required part of every New York LLC, the operating agreement should be drafted within 90 days of organizing your business documentation.

The operating agreement applies to both single and multi-member LLCs, helping to outline individual responsibilities, legal liability, voting rights, financial contributions, and more.

The document should be signed by all parties and each member should keep a personal copy in the case it is needed for a dispute.