Opn. No. ( 1981 )

Hon. Norman Goodman County Clerk, New York County

On November 13, 1978, we issued an informal opinion answering two questions that you had raised:

With regard to section 91 (b) of the Partnership Law "may a Limited Partnership begin doing business upon filing its certificate with the County Clerk or must it await completion of publication?" With regard to section 114 of the Partnership Law "must an amended Limited Partnership certificate be published?"

Subsequently, questions were raised concerning our answer to the first question. We were considering our position on that question when our volume of 1978 opinions was ready for the printer. We decided not to include the opinion in the printed volume. We then learned that an amendment of section 91 was pending in the Legislature. The amendment passed and became chapter 499 of the Laws of 1980. That amendment, in effect, overruled our conclusion on the first question.

Because the opinion is cited in annotations to section 114, we take this opportunity to reissue our opinion insofar as the second question is concerned.

Section 114(1)(a), which refers to the requirements for amendment or cancellation of a limited partnership, provides that "[t]he writing to amend a certificate shall conform to the requirements of subdivision one-a of section ninety-one of this article, as far as necessary to set forth clearly the change in the certificate which it is desired to make * * *." The only requirements of section 91 (1) (a) refer to the 14 items that must be included in the certificate of limited partnership and since the provision of section 114 refers to the fact that an amendment or cancellation of the limited partnership should conform to the requirements only of section 91 (1) (a), section 114 does not, therefore, require conformity with subdivision (1) (b) of section 91, which provides for the filing and publication of the certificate.

Further, section 114 (5) does not incorporate any provision for publication of the certificate of limited partnership stated in section 91 (1) (b). Section 114 (5) also provides its own method of filing in the office of the county clerk and makes no provision for publication of a certificate amending or canceling a limited partnership.

We conclude that since section 114 makes no requirement for publication in amending or canceling a limited partnership, publication of the amendment or cancellation is not required.