March 25, 2020
By: Alan Kolod
Remote online notarization has been authorized in New York State until April 18, 2020, by Executive Order No. 202.7 issued March 19, 2020. This covers only a NY licensed notary, sitting in NY, notarizing a tangible document for someone representing to the notary that he or she is physically located in NY. Thus, a signer located at home in, say, NJ or CT cannot use this, without traveling to NY. It requires the notary to either know the signer or view a valid photo ID. The notarial process described is what is called an acknowledgement by the signer. The signed document has to be faxed or pdf’d and emailed to the notary on the same day, who then will notarize it and fax or email a pdf of the copy with the notarial certificate back to the signer. The notary is authorized to “repeat the notarization” on the original (“papering-out”) as of the date of signing, if the original is received by the notary (together with the notarized copy) within 30 days. There is no provision for notarization of electronic documents or records.
The EO does not state that the notary must record the online video process to prove later that it happened. It also does not require the notary to keep a journal entry of what was done. No procedure is required to confirm that the presented ID is a valid document or to otherwise confirm the identity of the signer. The EO does not state what must be said in the notarial certificate, and, therefore, it is possible that the later notarization of the original will not indicate in any way that the notarization was performed for a remotely located signer. Furthermore, the EO does not state that this audio-visual process constitutes the appearance of the signer personally before the notary or that the notary may administer an oath, assuming that an EO could so provide. Thus, the EO does not appear to authorize verifications under oath, but only acknowledgments, and any statement by the notary in the certificate that the signer “personally appeared” may be false, or, alternatively, if the notary does modify the certificate to say that the person appeared by audio-visual conference on the internet, the certificate of acknowledgment may not comply with Real Property Law section 309-a. All of these are deficiencies in the EO process that could lead to litigation or could facilitate the inadvertent or intentional notarization of forged documents.
It also should be noted that the EO does not require use of a secure connection.
The EO appears designed to assist people who need to get a document notarized but are “sheltering in place” or quarantined. It may help a company facing a deadline to transmit a notarized document signed by an employee from home, although there is no assurance that the recipient of such a document will accept it if they are aware of how the notarization was performed. However, it may not be available to financial institutions that have stringent prohibitions on employee’s emailing to their homes or printing out corporate documents. More importantly, the EO may expose the recipient of such a notarized document to heightened risk that the notarization may be deemed ineffective (such as by a recording officer) or that the signer may have used the EO in order to facilitate forgery. Any person receiving a notarized tangible instrument with a wet signature dated between March 19 and April 18, 2020, should question whether the notarization was performed under the EO.
The recipient of a document notarized under the EO should question it closely, or, perhaps insist on a more reliable notarial process done remotely under the laws of one of the states that has an online notarial law based on one of the recognized model acts. New York should consider replacing the EO with a New York statute authorizing remote online notarization.