Can a NY county clerk accept a DBA certificate when the assumed name looks like a person's name, and can the clerk fix obvious filing errors?

Subject

County clerk filing duties: assumed-name certificates, CPLR fee exemption scope, and correction of erroneously recorded documents

Plain-English summary

The Nassau County Attorney brought the AG four practical filing questions. The AG resolved each.

First, can the clerk accept a DBA (doing business as) certificate where the assumed name looks like a person's name? General Business Law § 130 imposes restrictions on using person-looking assumed names. The certificate is acceptable when the filer states the name has a "secondary, historic or geographic meaning" apart from being a person's name, and the certificate describes that meaning. Here the filer had used the assumed name as a trade name in show business and advertising for twenty years and said so on the certificate. The AG saw nothing in the statute requiring the clerk to investigate the truth of that statement. The clerk takes the certificate at face value. The statute is a consumer-protection provision aimed at identifying the actual person behind a business name, and that purpose is served when the certificate gives a true name and address.

Second, can the clerk require the filer to first file in other counties before filing in Nassau? No. Section 130 requires filing in each county where business is conducted, but compliance with another county's filing rules is that county's concern. Refusing the Nassau filing because nothing had been filed elsewhere would defeat the consumer-protection purpose by leaving Nassau consumers without notice of the filer's identity.

Third, does the CPLR § 8017 filing-fee exemption cover a lawsuit brought by another county's county executive in his official and individual capacities? The exemption applies only to the county served by the clerk where the papers are filed. So a Nassau clerk does not have to waive fees on papers filed by another county's executive. The exemption also reaches only "the county, or an agency or officer thereof acting in an official capacity." Officials in their individual capacity and private parties on the opposing side of county litigation pay normal fees.

Fourth, can the clerk remove an erroneously recorded document and what should the record show afterward? Yes. The AG cited the general principle (with appellate-division support) that administrative officers can correct clerical errors. Here someone presented two documents: a base lease marked "for examination only" and a sublease for recording. The clerk recorded both. The AG concluded the base lease can be removed and that the clerk should take steps to avoid confusion (a notation in the index that the document was removed, blank pages where the document had been in the record book, and a cross-reference to the index).

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why doesn't the clerk have to investigate the truth of a "secondary meaning" statement?

Because the statute does not require it. The certificate is essentially a sworn statement; if the filer lies, the legal consequences fall on the filer, not on the clerk. Investigating each claim would be unworkable and would defeat the practical purpose of a ministerial filing system. The AG calls this taking the certificate at face value.

Can a consumer challenge an assumed-name filing?

The opinion does not address that. The consumer-protection theory animating § 130 is that filings give consumers a way to find out who they are dealing with. If a filing is false (the secondary-meaning claim is bogus), the remedy lies in fraud doctrine, regulatory complaint, or civil suit, not in second-guessing the clerk's acceptance.

Why does CPLR § 8017 work only for the home county?

Because the AG read the 1965 Op Atty Gen (Inf) 151 line of opinions as construing the exemption as a county-by-county arrangement: the local county doesn't charge itself a fee for filing its own paperwork. Extending that exemption to outside counties would impose costs on counties that had no role in the filing.

What was the practical posture of the recording-error question?

Someone walked in with two documents. One was a base lease marked "for examination only" (not meant to be recorded, just shown to the clerk so the sublease made sense). The other was a sublease, meant for recording. The clerk accidentally recorded both. The filer asked the clerk to fix it. The AG said yes, fix it, but document the correction so the record makes sense to anyone reading it later.

Could a private party use § 8017 if they had a county-related interest?

No. The exemption runs to "the county, or an agency or officer thereof acting in an official capacity." Private parties pay the standard fees, even if they are adverse to the county in litigation and the county itself enjoys the exemption.

Statutory framework

General Business Law § 130 requires individuals conducting business under a name other than their real name to file an assumed-name certificate with the county clerk in each county of operation. Restrictions apply when the assumed name resembles a person's name; the filer must show either that it is the filer's true name or that the name has a secondary, historic, or geographic meaning, with that meaning stated in the certificate.

CPLR § 8017 prohibits clerks from charging fees to the state, its agencies, or its officers in actions involving them; and prohibits charging the county or its officials acting in an official capacity for filing in the county served by that clerk.

Administrative officers generally may correct clerical errors. See, e.g., National Tractor Trailer School v Department of Motor Vehicles, 191 AD2d 961 (4th Dept 1993); Turner Construction Co. v NYS Tax Commission, 57 AD2d 201 (3d Dept 1977).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-45_pw.pdf

Original opinion text

CPLR § 8017; GENERAL BUSINESS LAW § 130.

The county clerk may accept for filing a certificate that indicates a person is doing business under an assumed name that appears to be the name of a person, when the certificate describes the secondary, historic or geographic meaning or connotation of the assumed name. The clerk may not require that such a certificate be filed in other counties before it is accepted for filing in the clerk's county.

The exemption set forth in CPLR § 8017 applies only to the county served by the clerk with whom papers are to be filed.

The county clerk may correct an obvious clerical error and remove erroneously recorded documents from the record, taking whatever steps are deemed necessary to avoid confusion as a result of the removal.

September 20, 1995

Owen B. Walsh, Esq.
County Attorney
County of Nassau
Nassau County Executive Bldg.
One West Street
Mineola, NY 11501-4820

Informal Opinion
No. 95-45

Dear Mr. Walsh:

You have asked several questions regarding various documents to be filed with the county clerk.

First, you ask whether, pursuant to General Business Law § 130, the clerk may accept for filing a business certificate that indicates an individual is doing business under an assumed name which appears to be the name of a person. The certificate describes the "secondary, historic or geographic meaning or connotation" of the name as having been developed in the course of the individual's use of the assumed name as a trade name in show business and advertising over a period of 20 years. You have attached a copy of the proposed certificate to your request.

We conclude that the clerk may accept such a certificate for filing. General Business Law § 130 governs the filing of assumed name certificates by persons who conduct business under names other than their real names. It provides in relevant part:

1. No person shall hereafter (i) carry on or conduct or transact business in this state under any name or designation other than his or its real name . . . unless:

(a) Such person, if other than a corporation or limited partnership, 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.

The statute includes restrictions on the use of assumed names that appear to be the name of a person. It provides:

2. (a) No person or persons shall hereafter use or file a certificate for the use of any name or designation to carry on or conduct or transact business in this state which consists of or includes words, or initials and a word or words, which are or appear to be the full name or names, or the initial or initials and family name of a person or persons, or a colorable simulation thereof, unless:

(1) the words or initials and word or words appearing to be the full name or initials and family name of a person included, are the true full name or the initials and family name of the person or one of the persons conducting the business; or

(2) the words or initials and words so included, which are or appear to be the full name, or the initials and family name, of any person, have a secondary, historic or geographic meaning or connotation apart from that of a name of a person, and the name or designation so used contains a word or words clearly signifying such secondary, historic or geographic meaning or connotation, or is followed by the abbreviation "a.n.", and said secondary, historic or geographic meaning or connotation is stated in the certificate.

The proposed certificate includes the filer's statement that the assumed name has a historic background due to its longstanding use as a trade name. We are not aware of any requirement that the clerk look behind the certificate to determine its validity. He or she may accept it for filing at face value. We also note that

section 130 of the General Business Law is a consumer protection statute; . . . the purpose of this filing requirement is to identify the persons conducting the business, and to protect the public by preventing deception and confusion.

See, Informal Opinion No. 88-56. These aims are served when a certificate meeting statutory requirements, by including the true name and business and residence addresses of the filer, is filed. Consumers who do business with the filer easily can ascertain his/her true identity and correct address.

Your second question is whether the clerk may require a person doing business under an assumed name to file a certificate in another county. The statute requires that a certificate be filed in each county where a person using an assumed name transacts business. Clearly, filing in your county is required in the circumstances you present. In our view, however, the filing requirements of other counties are matters to be determined by those counties. The aims of the statute would not be served if the Nassau County Clerk refused to accept the certificate for filing because a certificate had not been filed in another county. Nassau County residents then would be deprived of the notice that the filed certificate provides.

Next, you ask whether the exemption from fees that is set forth in CPLR § 8017 applies in an action brought by a county executive in his official capacity and individually. You also ask whether the exemption applies to all parties in such an action. You have supplied copies of correspondence regarding filing fees charged in a particular lawsuit to illustrate your questions.

CPLR § 8017 provides:

Notwithstanding any other provision of this article or any general, special or local law relating to fees of clerks, no clerk shall charge or collect a fee from the state, or an agency or officer thereof, for any service rendered in an action in which any of them is involved, nor shall any clerk charge or collect a fee for filing, recording or indexing any paper, document, map or proceeding filed, recorded or indexed for the county, or an agency or officer thereof acting in an official capacity, nor for furnishing a transcript, certification or copy of any paper, document, map or proceeding to be used for official purposes.

We previously have concluded that the exemption established by section 8017 "was intended only for the county served by the county clerk in which such papers were to be filed". 1965 Op Atty Gen (Inf) 151. See also, Opinions of the State Comptroller, Opinion No. 89-19. Since the papers you present as an example were filed by the county executive of another county, the exemption was not applicable, regardless of the capacity in which the executive acted. Generally, we note that by its terms the statute provides an exemption only to "the county, or an agency or officer thereof acting in an official capacity". Thus, neither county officials acting as individuals nor private parties involved in litigation with the county would be entitled to the statutory exemption.

You also have asked whether a mechanism exists whereby the county clerk may remove erroneously recorded documents from the record and, if the clerk may do so, what the record should reflect. You explain that an individual presented two documents to the county clerk. The first, a base lease, was marked "for examination only" and was presented for inspection. The second document, a sublease, was presented to the clerk for recording. The clerk erroneously recorded both documents. The person who presented the documents has made a written request to the county clerk to remove the base lease from the record. We conclude that the clerk may correct an obvious clerical error and remove an erroneously recorded document from the record. Administrative officers generally have the authority to correct clerical errors. See, e.g., National Tractor Trailer School v Department of Motor Vehicles, 191 AD2d 961 (4th Dept 1993); Turner Construction Co. v NYS Tax Commission, 57 AD2d 201 (3d Dept 1977).

The clerk should take whatever steps she deems necessary to avoid confusion as a result of removing the erroneously recorded document from the record. Such steps might include noting in the index that the particular document was removed and, in the record book, leaving blank pages where the document had been, with a notation that nothing is now recorded at those pages and with a reference to the index.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General