We recently setup an LLC in New York State with Legal Zoom. Due to a mistake on our part or theirs, they set our registered agent to one of the partners at our company office. We usually won't be there during normal business hours, as the office is one of the partners houses and he has a day job.
I know the registered agent is supposed to be available during business hours to be served. My question is, what happens the registered agent is generally available at that address, but not necessarily during business hours? Will that be subjecting to legal or civil consequences? If we do get sued and no one is available to be served papers during business hours, won't the process server just come back later?
double check the LLC Articles of Organization to make sure your partner is in fact the registered agent and not just the designated mail recipient. I ask this question because NY is relatively unique - the default registered agent in NY is actually the NY Secretary of State itself, whereas in most other states, the RA must be a private office. A lot of people confuse the process server (registered agent) with someone who simply handles mail. Of course, some still do specifically designate a private office to be the registered agent instead of the NY SecState, so it will depend on the specific language of your Articles.
The relevant section of the articles based on the default NY Dept. of State template reads as follows:
"THIRD: The Secretary of State isMost LLCs in NY simply specify the office address that the SecState serves process to, because legally, the NY SecState provides free process serving. It is the duty of the process server (a.k.a. registered agent) to be available during business hours, not the entity being subpoenaed. Thus, the SecState should be responsible for ensuring delivery of service of process to your address, even if your mail handler isn't available during business hours. I would still recommend calling the NY SecState to make sure you don't have to be available during business hours - (518) 473-2492. HOWEVER, you do need to make sure that if the SecState does deliver service of process, you do not drop the ball on responding on time. See Pepsi's $1.26 million mistake.
designated as agent of the limited
liability company upon whom process
against it may be served. The address
within or without this state to which
the Secretary of State shall mail a
copy of any process against the
limited liability company served upon
him or her is :"