Paul Millus Writes, "Breaking Down Remote Online Notarizations Permitted in New York Effective June 20, 2022."

I don’t know about you, but as a litigator I find it tedious dealing with the notarization of my clients’ signatures for affidavits or verifications. In New York, as we all know, pursuant to CPLR § 2106, only an attorney, physician, osteopath or dentist (who is not a party) may file an affirmation without the need for notarization. One can understand the basic premise behind the requirement of notarization to ensure that the person signing the document is, in fact, the person attesting to it, especially in real estate or corporate matters. But in litigation is it really necessary? The federal practice approach under 20 U.S.C §1746 seems to work just fine. Others seems to agree. As recently as 2019, there was a proposal for New York to adopt the Unsworn Foreign Declarations Act which would permit the affirmation of any person to be acceptable obviating the need for notarization. Well . . . that did not occur.

Whether there will ever be a meaningful (and helpful) change in New York law, no one knows. However, a modicum of relief has been passed into law. On December 22, 2021 New York Governor Kathy Hochul signed a new law, effective on June 20, 2022, making New York one of the 40 states to allow remote online notarizations (“RONs”). The origin of the RON law, of course, came from an Executive Order in March of 2020 permitting remote electronic notarization during the Coronavirus pandemic.

The statute, N.Y. CLS Exe. Law 135-c is 6 pages long and, quite frankly, supremely confusing. Note, there are 13 separate definitions set forth in the statute. So rather than you having to take the time to slog through this statute, I have done so for you.

To simplify matters, here is what you must do to satisfy the statute: First, the notary must identify the principal. Here are the 3 ways. (1) the notary has personal knowledge of the principal; (2) the notary identifies the principal who appears remotely by means of “communication technology” (which is not defined in the statute) using each one of the following: (a) the remote presentation by the principal of a “Credential”; (b) the performance of a “Credential Analysis”; and (c) the “Identity Proofing” of the principal. As for what “Identity Proofing” is, the statute is very unclear and its seems regulations will be promulgated to explain what the notary must do to perform this task; and finally (3) an oath or affirmation of a “credible witness or person” who personally knows the principal and who is either known personally to the notary public or later identified to the notary public under the sub-conditions set forth to above.” Confused so far?

Let’s break it down. Practically speaking, provided you know the person whose signature you are notarizing, it is fairly clear that you can accept a notarization over the telephone. Otherwise, it would appear that a Zoom conference (or a “communication technology conference” which the statute does also not define) might be in order whereby you can identify the “Credential” being provided by the affiant to matchup that “Credential” with the signer. The statute’s definition of what a “Credential” is far too complicated. Bottom line: a driver’s license as they are presently issued in NY should be more than enough. Again, I cannot opine on what constitutes “identity proofing” until we get further guidance in the regs.

To make things even more difficult, with any RON, the notary must maintain a recording containing both audio and video (where used) of the remote authorization for a period of 10 years. The notary has to be physically situated in New York State at the time of the RON while the principal may be situated in New York, outside of New York- but inside the United States (or even outside of the United States under certain limited circumstances). The notary must maintain a “journal of each remote notarization performed pursuant to this section” which, if requested, must be provided to the Secretary of State. The journal entry must be made contemporaneously with the performance of the notarial act, indicate the date and approximate time, the name of the principal, the technology used to perform the remote authorization, the number and type of notational services provided as well as an indication as to type of credential used to identify the principal.

The lawyer may provide a RON involving papered documents provided the principal transmits those documents by mail, fax or any electronic means whereupon the principal appears before the notary by means of “communications technology” to perform the notarial act in accordance with the law. After doing so, “within a reasonable time” the notary then transmits the record back to the principal by mail, fax or other secure electronic means.

In sum, I suppose this is somewhat more helpful—but only somewhat.