New York is one of the few states that legally requires LLCs to adopt a written operating agreement. NY LLCL § 417 sets the rules: the document isn’t filed with the state and must be adopted within 90 days of filing Articles of Organization.
Choose the version that matches your New York LLC structure.
Is a Written Operating Agreement Required in New York?
Yes. New York LLC Law § 417 requires members to adopt a written operating agreement. It may be entered into before filing, at the time of filing, or within 90 days after the Articles of Organization are filed. The operating agreement is an internal company document and is not filed with the Department of State.
The public formation document is the New York Articles of Organization, which currently carries a $200 filing fee. New York also has a separate formation requirement that is easy to confuse with the operating agreement: most LLCs must publish notice in two county-designated newspapers for six successive weeks and file a Certificate of Publication. Failure to complete the publication filing within 120 days can suspend the LLC’s authority to carry on business in New York.
How New York Law Defines an Operating Agreement
“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’s definition expressly requires a written agreement and ties that definition to § 417, the provision that establishes the operating-agreement requirement and timing.
An oral understanding by itself is not the statutory operating agreement New York requires. Both § 102(u) and § 417(a) make written form part of the rule.
§ 417(c) allows the agreement to be entered into before formation, at the time the Articles of Organization are filed, or within the following 90 days. It may take effect when the LLC is formed or later, but never before the company itself exists.
The New York Department of State describes the operating agreement as the LLC’s internal document. It establishes rights, powers, duties, liabilities, and obligations among the members and with respect to the LLC, and it is not filed with the Department of State.
New York LLC Default Rules Your Agreement Can Change
A New York LLC is required to have a written agreement, but leaving an issue unaddressed can still trigger statutory defaults. These are the New York rules most worth spelling out rather than leaving to the statute.
Voting is not automatically one-member, one-vote. Unless the agreement changes the rule, each member votes according to that member’s share of the LLC’s current profits.
§ 402(a)Members manage the LLC by default. Manager management applies when the Articles of Organization provide that management is vested in one or more managers.
§§ 401, 408If the agreement does not set another formula, profits, losses, and distributions follow the value of each member’s contributions as reflected in the LLC’s records.
§§ 503, 504A majority in interest can amend the operating agreement by default. Certain changes involving contribution obligations, tax allocations, or distribution calculations may require the written consent of the affected member unless the governing documents provide otherwise.
§§ 402(c), 417(b)A member generally cannot withdraw before dissolution unless the operating agreement provides a time or event for withdrawal. If withdrawal is permitted but the agreement does not set the payout, the statute supplies a fair-value rule.
§§ 606, 509In a manager-managed LLC, members elect managers annually by default unless the operating agreement provides a different arrangement.
§ 413- New York Limited Liability Company Law § 102, Definitions
- New York Limited Liability Company Law § 417, Operating Agreement
- New York Limited Liability Company Law, Article 4, Management by Members or Managers
- New York Limited Liability Company Law, Article 5, Contributions and Distributions
- New York Limited Liability Company Law § 606, Withdrawal of a Member
