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III. Incorporation under Statutes Other Than the Education Law

Under the provisions of §216 of the Education Law, §404, subdivision (d) of the Not-For-Profit Corporation Law and §104 of the Business Corporation Law, no institution or association which might be incorporated by the Regents may, without their consent or that of the Commissioner of Education, be incorporated under any other law. Such a consent, if granted, is merely a waiver of the Regents’ right to incorporate and does not constitute approval for any purpose of the proposed corporation or its corporate purposes.

With rare exceptions, the Regents and the Commissioner do not consent to the incorporation of schools, colleges, universities, libraries, museums, historical societies or public television and/or radio corporations under the Not-For-Profit Corporation Law. Consents to incorporation under other laws (e.g., the Business Corporation Law) may be issued where the corporation will have educational purposes but where it is clear that the corporate name and purposes do not describe an institution which may be incorporated only by the Regents (such as a museum, library, historical society or public television and/or radio corporation).

Section 3.26 of the Rules of the Regents (see Appendix B) contains specific provisions authorizing the Commissioner to consent to the formation under the Business Corporation Law of schools offering instruction in any of the grades one through twelve, or at the kindergarten or pre-kindergarten level. In the case of postsecondary institutions offering programs in the licensed professions, Education Law §6506, subdivision (3) requires that specific approval of the Regents be obtained. The regulation requires that the proposed certificate of incorporation (or certificate of amendment) contains the precise language set forth in §3.26. The procedure for review of such a certificate by the Education Department is identical to the procedure for review of a charter petition. The fee for the issuance of consent to file such a certificate is $100, payable to New York State Education Department.

Application for the consent of the Commissioner to the creation of a corporation with educational purposes under a law other than the Education Law may be made by submitting the original and one copy of a fully executed certificate of incorporation to The State Education Department, Office of Counsel, Room 148, E.B., Albany, New York 12234, with a request that the consent of the Commissioner be affixed. If consent can be given, a certificate of consent will be affixed to the certificate of incorporation, and the documents will be returned to the sender. If any obstacles to consent appear to exist, the submitter will of course be notified. The fee for the issuance of a consent to file with the Secretary of State in all cases except those governed by §3.26 of the Rules of the Regents is $20 for business corporations and $10 for not-for-profit corporations. (Frequently asked questions)