Effective February 25, 2022, New York State did away with its in-person only notarization of paper documents with ink signatures. The one exception was when New York State Governor’s Executive Order 202.7 was in effect. Executive Order 202.7 allowed the use of remote notarization of client ink-signatures on paper documents. When the Governor’s Executive Order 202.7 expired, the New York Legislature responded to the void left by reinstituting remote notarization and expanding on the concept.
Effective upon the Governor’s signing of the legislation, New York Notaries are able to notarize both paper and electronic documents remotely, using secure online digital technologies. However, the new law contains two (2) different versions of new Execution Law Section 135-c. The first version contained in Subdivision 1 of the legislation became effective immediately, but it will be repealed and replaced on January 31, 2023 with a different Section 135-c contained in Subdivision 2 of the law. The replacement law under Section 135-c Subdivision 2, effective January 31, 2023, will allow Notaries to provide remote notary services so long as they register with the Department of State. On that date, new regulations will go into effect with additional requirements for electronic Notaries.
Remote ink notarization in effect until January 31, 2023.
Section 1 of the Legislation, which contains new Executive Law 135-c, advises any Notary qualified under the Executive Law to perform a remote notarization using communication technology if all conditions set forth in Subdivision 2 of the Executive Law 135-c are met. No qualifications other than licensure as a Notary are specified.
The language required by the statute for notarial certificates for remote notification is new. Notaries can certify the authenticity of electronic records and “paper out” the certified electronic documents on a specified form that County Clerks and recorders are required to accept for recordation. New York Notaries who are situated in New York can now notarize signatures of persons not physically in the state. They can even notarize signatures of persons outside the United States provided there is a U.S. nexus.
For the New York Notary who wishes to perform a “remote notarization” and who is physically located within the State of New York at the time of the notarization, the Notary must identify the remote signor (also know as the “principal”) of the document through any one of the following three methods:
- The Notary’s personal knowledge of the signor;
- By means of communication technology that facilitates remote presentation by the signor of an official, acceptable form of ID, credential analysis, and identity proofing; or
- Through oath or affirmation of a credible witness who personally knows the signor, and who is either personally known by the Notary or identified by the previously means of communication technology.
Regardless of the method used to confirm the identity of the signor, the Notary must be able to see and interact, in real-time, with the remote signor of the document through audiovisual communication technology. This technology must have security protocols in place to prevent unauthorized access. The Notary must make and keep an audio-visual recording of the remote notarization and ensure that there is backup of the recording.
After the remote signor has executed the document, it must be transmitted to the Notary Public for officiating. The Notary must confirm that the document is the same as the one signed remotely in the Notary Public’s presence before applying the notary stamp and signature to the document. The following statement must be added to the jurat: “This remote notarial act involved the use of communication technology”.
The anti-fraud protections of remote notarizations are built into Section 1 of the statute. There are three (3) basic anti-fraud requirements of the new notary law. First, Notaries must use a reliable method to confirm the signor’s identity and keep a journal recording how the signor’s identity was confirmed. Second, Notaries must use reasonable means to ensure the integrity and identity of signed and notarized documents. Third, Notaries can refuse to perform a notarial act if not satisfied that a signor is competent to sign a record or is not signing knowingly and voluntarily. Most important, Notaries must make a backup of the video recording notarizations and retain them for ten (10) years. The Notary’s journal of remote notarizations, which records the date, time, signor, technology used, notarial services provided, and the identification credentials used, must be retained for five (5) years after the Notary leaves office.
The signor can prove identity in two (2) different ways. The first is a three (3) step process, which begins when the signor presents an approved ID containing a photograph, signature and credential security features, such as physical characteristics (e.g., height and eye color) or a holographic image. The second and third steps address the risks that the proffered credential is fake or altered. The Notary must subject the credential to analysis by an online process that uses public or proprietary databases to confirm that the credential is not fraudulent or modified. As part of this “credential analysis” the Notary must compare the signor’s photograph to the signor’s appearance on the database. Finally, the Notary uses “identity proofing” to assure the Notary that the signor is the person reflected in the credential. To do this, the Notary uses personal information about the signor available from public and proprietary data sources. The most common form of identity proofing uses personal questions based on credit bureau databases that only the signor can answer quickly.
The other ways for signors to prove their identity is for a “credible witness” who knows the signor to provide an oath or affirmation as to their identity. If the credible witness is not personally known to the Notary, the witness must be subjected to an electronic credential analysis and identity proofing. This “credible witness” method will likely be most useful for transactional and estate planning matters where the lawyer knows both the Notary and the signor and can easily provide the required oath or affirmation. This method can be useful as well when a signor is not able to provide their identity online (e.g., they have no credit history) but knows a credible witness such as a Minister, Rabbi, community leader or public official.
REMOTE ELECTRONIC NOTARIZATION AFTER JANUARY 31, 2023
Section 135-c of the Executive Law entitled “Remote Ink Notarization”, will be repealed effective January 31, 2023, and replaced by a new Section 135-c entitled “Electronic Notarization”. After January 31, 2023, only e-notarization of electronic documents and remotee-notarization will be permitted. Remote ink notarization, or (RIN), will be replaced by enotarization of electronic documents and remote-e-notarization, or (RON). Section 2 of the new statute applies to “electronic notarial acts” which involve only electronic records. It deals with identification of the remote signor and contemplates that the Secretary of State will issue regulations for the communication technology used in an electronic notarization. A single transmission must be secure from interception, permit live real-time communication, and permit communication with and identification of the signor. Under Section 2 of the statute, the Secretary of State must recognize at least two (2) processes of fraud detection technology for authenticating the identity of a “remotely located individual” not personally known to the Notary, but until the Secretary issues regulations recognizing new technologies, the only two (2) means of identification, credential analysis and identity proofing, will be acceptable and available.
The new Section 2 of 135-c does not permit the alternative identification option-the oath or affirmation of a credible witness. The lack of this alternative by its automatic repeal in Section 1 of the statute- in effect until January 31, 2023- will limit the use of remote notarization to signors who either know a Notary personally or who have a sufficient credential and credit history to permit the use of credential analysis and identity proofing.
Importantly, Notaries will not be able to perform an electronic notarial act until they register with the Secretary of State under a yet to be developed system. The registration process for electronic Notaries will have the limited purpose of identifying them and the technology they use and their signature. The Secretary of State will have authority to adopt rules setting standards relating to the Notaries electronic signature.
A Notary does not have to provide remote notary services. If a notary does not have the appropriate technology or capability to provide such services or does not wish to engage at all in remote notarization, a Notary may decline to provide remote services.
The new legislation states in part that a County Clerk, City Registrar, or other recording officer, where applicable, shall accept for recording a tangible copy of an electronic record and that is otherwise eligible to be recorded under the laws of New York State if the record has been certified by a Notary Public. To be accepted, the Notary would first have to certify the remotely notarized document. Questions about filing such documents should be directed to the filing office where the document will be submitted.
In conclusion, New York’s new Remote Notary Law reforms New York Notary Law by authorizing remote on-line notarization of both paper and electronic documents until January 31, 2023. After January 31, 2023, it provides for a different Section 135-c limited to remote on-line e-notarization.
Remember: New York’s Law governing in-person notarization of paper documents is not affected by the new Remote Notary Law.
Alden B. Smith, Esq.
Co-Chair of the RCBA Continuing Legal Education Committee