Opn. No. ( 1976 )

HON. JAMES L. MAGAVERN County Attorney, Erie County

This is in response to the letter of Justyn E. Miller, Assistant County Attorney, received September 23, 1976, wherein he asks for an opinion of the Attorney General as to whether or not a county clerk may accept for filing, under General Business Law, § 130, a certificate of amendment which leaves only the corporate person as doing business under an assumed name.

In 1963 Atty. Gen. [Inf.] 197, we concluded that a county clerk could not accept a certificate of a corporation, seeking to do business under an assumed name, pursuant to section 440 of the former Penal Law which was transferred by the Laws of 1965, chapter 1031, section 52, to General Business Law, § 130, without changing the substance.

In 1972 Atty. Gen. [Inf.] 266, we concluded that a county clerk may not accept for filing a certificate of a corporation, doing business under an assumed name, pursuant to General Business Law, § 130, but may accept for filing, under General Business Law, §130 (1) (b), a certificate of a corporation and others doing business as partners under a partnership name.

In 1975 Atty. Gen. [Inf.] 290, we concluded that a county clerk may accept for filing under General Business Law, § 130, a certificate of partnership of two or more corporations doing business under an assumed name.

Section 130, subdivision 7 of the General Business Law states that subdivision 1 and subdivision 2 of this section shall not apply to any domestic or foreign corporation.

Accordingly, we conclude that in the absence of express statutory authority a corporation cannot amend a previously filed certificate of assumed name with an individual or individuals by eliminating from the certificate all the parties other than the corporation, since there is no provision that such could be accomplished by the corporation in the original certificate.