Opn. No. ( 1979 )

Hon. Jack M. Weinstein Counsel to County Clerk Queens County Clerk's Office

Your recent letter asks our opinion whether (1) a corporation which is presently listed as a partner on a certificate filed with a county clerk prior to January 1, 1979, is required to file again with the Secretary of State; and (2) whether a corporation which has been doing business under an assumed name prior to January 1, 1979, without the requirement of filing with the county clerk is now required to file with the Secretary of State.

Section 130 (1) of the General Business Law, as amended by CH 693, LAWS OF 1978, effective January 1, 1979, provides as follows:

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

"(a) such Such person, if other than a corporation, 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, 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 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 and duly acknowledged by an officer of the corporation.

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

"(a) `Person' shall mean an individual, partnership, corporation, and unincorporated association;

"(b) The `real name' of a corporation shall mean its corporate name as set forth in its certificate of incorporation."

(Changes or additions in text are indicated by underline deletions by strikeouts)

Until the enactment of CH 693, LAWS OF 1978, there was no authority for a corporation to file a certificate of doing business under an assumed name. Business corporations, however, were required to file certificates upon their formation with the Secretary of State pursuant to Article 1 of the Business Corporation Law.

It should be noted that the filing requirements under General Business Law, § 130(1)(a) require filing of assumed names with the county clerk while the new amendments require corporations to file with the Secretary of State.

Section 202 of the Business Corporation Law was also amended by the addition of a new subdivision b which reads as follows:

"(b) No corporation shall do business in New York state under any name, other than that appearing in its certificate of incorporation, without compliance with the filing provisions of section one hundred thirty of the general business law governing the conduct of business under an assumed name." (Changes or additions in text are indicated by underline deletions by strikeouts)

Also, Section 202 of the Not-For-Profit Corporation Law was amended by adding a new subdivision f which reads as follows:

"(f) No corporation shall conduct activities in New York state under any name, other than that appearing in its certificate of incorporation, without compliance with the filing provisions of section one hundred thirty of the general business law governing the conduct of business under an assumed name." (Changes or additions in text are indicated by underline deletions by strikeouts)

The provisions quoted supra all indicate by the use of the word "shall" a mandatory direction that any corporation using an assumed name must file with the Secretary of State. Section 130 (9) of the General Business Law, as amended, further supports this argument.

"9. Any person or persons carrying on, conducting or transacting business as aforesaid, who fails to comply with the provisions of this section or who wilfully makes a false statement in a certificate filed thereunder shall be quilty¹ of a misdemeanor and 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."

"¹ So in original. Probably should be `guilty.'"

(Changes or additions in text are indicated by underline deletions by strikeouts)

In answer to your first question, note the wording of Section 130(1) of the General Business Law, "No person shall hereafter * * *" and also the underscored portion of paragraph 1 (a) excepts a corporation. When read with the rest of the amendments it is obvious that the statute is directed towards requiring any corporation using other than its true name to register with the Secretary of State. Though the definition of "person" in subdivision 1-a (a) of the General Business Law includes a corporation, Section 1 (a) supra excludes the corporation from filing with a county clerk. It is our conclusion, therefore, that a corporation which is listed as a partner on a certificate filed with the county clerk prior to January 1, 1979, must register with the Secretary of State if it is doing business under any name other than its corporate name.

In answer to the second question of your request, it is our opinion that any corporation using an assumed name prior to January 1, 1979, or seeking to now use an assumed name, is required to file a certificate with the Secretary of State pursuant to Section 130 of the General Business Law.