A New York LLC operating agreement is a document that the founding members of a company use to establish the framework of their company’s rules, regulations, operations, and ownership. Provisions of the agreement may limit the liability of its members for negligence of their duties unless they do so in bad faith or knowing violation of the law (§ 417(a)).
Unlike most other states, LLCs in New York are legally required to create an operating agreement, and it must become effective within ninety (90) days of the company’s foundation (§ 417(c)). Furthermore, New York law also requires that an operating agreement cannot become effective before the date the Articles of Organization are filed to form the LLC.
Single-Member LLC Operating Agreement – If the company has one (1) sole owner, they can use this simplified form.
Multi-Member LLC Operating Agreement – For use by companies that have more than one (1) member.
- Chapter: Chapter 34 (Limited Liability Company Law)
- Definitions: § 102
- Formation: § 203
- Naming of LLCs: § 205
- Step 1 – Choose a Unique Entity Name
- Step 2 – File Articles of Organization
- Step 3 – Create Operating Agreement
- Step 4 – Publish Articles of Organization
- Step 5 – Request an Employer ID Number (EIN)
Before forming an LLC, the company members will be required to choose a unique name that has not been registered by another company in the state. The Business Entity Database provided by the Division of Corporations can be used to search for any existing entity names similar to the members’ selection. If the name is already taken, another one will need to be selected and verified.
The Division of Corporations also accepts name availability requests by mail at the address below for a $5 fee.
An LLC name can be reserved for a sixty (60) day period to ensure that it doesn’t become unavailable before the company is registered. To reserve the name, the company will need to complete an Application for Reservation of Name (PDF/Online)and file it with the Division of Corporations for a $20 fee.
The New York Department of State allows LLCs to be filed online through the New York Business Express portal, for which entities must register an NY.gov account to gain access. Registration can also be accomplished by completing and filing the Articles of Organization (DOS 1336) with the Division of Corporations (see address below) and paying the $200 filing fee.
Foreign LLCs will need to file a different form, the Application for Authority, and pay a $250 fee.
New York State Department of State
Division of Corporations
One Commerce Plaza, 99 Washington Avenue
Albany, NY 12231
State law requires LLCs to execute an operating agreement within ninety (90) days of filing the Articles of Organization. The document will relay the rules and regulations of the company, as well as the ownership, rights, and responsibilities of its members.
State law requires newly-founded LLCs to publish their Articles of Organization in the county in which their office is located. The articles must be submitted to the county clerk who will select two (2) newspapers to publish notice of the LLC’s creation for six (6) consecutive weeks. Publication fees vary (see cost estimates).
Once the publication requirement has been fulfilled, the newspapers will provide affidavits of publication that the LLC must file with the Department of State along with a Certificate of Publication and payment of a $50 filing fee.
Certificate of Publication Requirement:
If the Certificate of Publication is not filed with the Department of State within one-hundred twenty (120) days of the LLC’s approval, the company will have its authority to conduct and transact business suspended.
All multi-member LLCs are required to acquire an EIN from the IRS. This number identifies the company for federal tax purposes, and must be obtained even if the company has no employees. There is no application fee. Applications can be completed through the Application for an EIN Online webpage.
Filing Options: Online / By Mail (see address below)
New York State Department of State