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NY Senate 7780

Legislation

State: New York
Signed: February 24, 2022

Effective: February 25, 2022
Chapter: 104

Summary
Senate 7780 makes a chapter amendment to Chapter 767 of 2021 related to New York’s permanent remote notarization law, delays the effective date of the permanent remote notarization law to January 31, 2023, and enacts temporary remote notarization provisions effective on February 25, 2022, and repealed on January 30, 2023.
Affects
Adds temporary Section 135-c to the Executive Law, changes prior Section 137-a of the Executive Law to permanent Section 135-c, and amends Section 137 of the Executive Law.
Changes

Temporary Remote Notarization

  1. Defines “communication technology, “credential,” “credential analysis,” “electronic,” “electronic record,” “electronic signature,” “identity proofing,” “notarial act,” “principal,” “record,” “remote notarization,” “remote presentation,” “wet signature,” and “outside the United States.”
  2. Authorizes any Notary to perform a temporary remote notarization by utilizing communication technology that allows the Notary to interact with a principal, provided that all conditions are met.
  3. Requires a Notary to verify the identity of the principal in a manner consistent with the requirements of subdivision 3 of temporary Executive Law Section 135-c.
  4. Authorizes a Notary to require an individual to provide additional information or identification credentials necessary to assure the Notary of the identity of the principal.
  5. Requires that the communication technology conference used for a remote notarization must allow for real-time, direct interaction between the principal and the Notary.
  6. Requires that the audio-video communication technology used for a remote notarization must provide reasonable security measures to prevent unauthorized access to the communication technology and to the methods used to verify the identity of the principal.
  7. Requires a recording, containing both audio and video, of the remote notarization to be retained by the Notary for at least 10 years.
  8. Requires a Notary to take reasonable steps to ensure that a backup of the recording of the remote notarization exists and is secured from unauthorized use.
  9. Permits a Notary to authorize a third party to retain such recordings on behalf of the Notary, provided that all recordings retained by a third party be made available to the Secretary of State upon request.
  10. Requires a Notary who performs a remote notarization to be able reasonably to confirm that a record before the Notary is the same record in which the principal made a statement or on which the principal executed a signature.
  11. Provides that for remote notarization involving paper documents, the principal may transmit by mail, fax, or electronic means a legible signed record directly to the Notary, and the principal may appear before the Notary by means of communication technology to perform the notarial act.
  12. Permits a Notary to notarize the paper record within a reasonable time and transmit the record back to the principal by mail, fax, or secure electronic means.
  13. Clarifies that an electronically transmitted paper document notarized in a remote notarization is considered an original document.
  14. Requires a Notary to be physically situated in New York state at the time of the temporary remote notarization.
  15. Permits the principal in a temporary remote notarization to be situated in New York, outside of New York but inside the United States, or outside the United States.
  16. Provides that if the principle is located outside the United States, the record must be filed with or relate to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or involve property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States.
  17. Requires a Notary who performs temporary remote notarizations to maintain a journal of each remote notarization performed, which upon demand, shall be subject to inspection by the Secretary of State.
  18. Requires the journal required to be maintained by each Notary for as long as the Notary remains in office and then for an additional 5 years thereafter.
  19. Requires each journal entry of a temporary remote notarization to be made contemporaneously with the performance of the notarial act.
  20. Requires each journal entry of a temporary remote notarization to indicate: (a) the date and approximate time of the notarial act; (b) the name of the principal; (c) the technology used to perform the remote notarization; (d) the number and type of notarial services provided; and (e) the type of credential used to identify the principal.
  21. Requires a Notary who performs a temporary remote notarization to be able to verify the identity of the principal at the time the notarial act is provided by one of the following methods: (a) the Notary's personal knowledge of the principal; (b) by remote presentation by the principal of a credential, credential analysis of the credential; and identity proofing of the principal; or (c) the oath or affirmation of a credible witness who personally knows the principal and who is either personally known to the Notary or who is identified by the Notary under (b).
  22. Clarifies that any temporary remote notarization performed in accordance with the temporary law satisfies any requirements at law that a principal personally appear before, be in the presence of, or be in a single time and place with a Notary at the time of the performance of the notarial act, unless a law expressly excludes the authorization provided in temporary Executive Law Section 135-c.
  23. Provides that any person who suffers actual damages as a result of a principal who violates any of the provisions of temporary Executive Law Section 135-c, has a civil cause of action against any such principal in a court of competent jurisdiction.
  24. Authorizes the Secretary of State to promulgate regulations establishing minimum standards that relate to reasonable security measures to prevent unauthorized access to communication technology and to the methods used to verify the identity of the principal, requirements that relate to the use and verification of an electronic signature, and any other matters necessary to administer the provisions of temporary Executive Law Section 135-c.
  25. Clarifies that pursuant to Executive Law Section 130, the Secretary of State may suspend or remove from office any Notary who violates temporary Executive Law Section 135-c.
  26. Clarifies that temporary Executive Law Section 135-c shall not be construed as requiring a Notary to use an electronic signature to perform a temporary remote notarization, and further clarifies that a temporary remote notarization may be completed by a wet or electronic signature.
  27. Provides that when performing a temporary remote notarization relating to an electronic record, a Notary must apply an electronic signature that is: (a) unique to the Notary; (b) capable of independent verification; (c) retained under the Notary's sole control; (d) attached or logically associated with the electronic record; and (e) linked to the data in such a manner that any subsequent alterations to the underlying electronic record are detectable and may invalidate the notarial act.
  28. Requires a notarial act performed according to temporary Executive Law Section 135-c to contain a statement on the notarial certificate substantially as follows: "This remote notarial act involved the use of communication technology."
  29. Provides that notwithstanding Executive Law Section 136, a Notary who performs a temporary remote notarization is entitled to the following fees: (a) $5 for administering an oath or affirmation, and certifying the oath or affirmation when required, except where another fee is specifically prescribed by statute, and (b) $5 for taking and certifying the acknowledgment or proof of execution of a written instrument by one and each additional person, and $5 for swearing each witness to the acknowledgment or proof.
  30. Clarifies that nothing in temporary Executive Law Section 135-c shall be construed as requiring any Notary to perform a remote notarization.
  31. Authorizes a Notary to refuse to perform a notarial act if the Notary is not satisfied that (a) the principal is competent or has the capacity to execute a record, or (b) the principal's signature is knowingly and voluntarily made.
  32. Authorizes a Notary to certify that a tangible copy of the signature page and document type of an electronic record remotely notarized by such Notary is an accurate copy of the electronic record.
  33. Provides that a certification of a tangible copy of the signature page and document type of an electronic record remotely notarized by such Notary certification must (b) be dated and signed by the Notary in the same manner as the official signature of the Notary provided to the Secretary of State pursuant to Executive Law Section 131, and (b) comply with Executive Law section 137.
  34. Provides a certificate for a Notary certifying a tangible copy of the signature page and document type of an electronic record remotely notarized by the Notary.

Permanent Electronic and Remote Notarization Changes

  1. Defines “principal” and “record.”
  2. Authorizes any Notary to perform an electronic notarization by utilizing communication technology that allows the Notary to interact with a principal, provided that all conditions are met.
  3. Clarifies that the regulations adopted by the Secretary of State must include a provision that (a) the communication technology used to perform a permanent remote notarization must permit the Notary and principal to communicate in real time: and (b) a standard that requires 2 or more different processes for authenticating the identity of a remotely located individual utilizing technology to detect and deter fraud, but which may allow a Notary's personal knowledge of a document signer to satisfy such requirement.
  4. Clarifies that the Secretary of State must clarify by regulation the amount of the fee required for a Notary to register to perform electronic notarizations.
  5. Clarifies that any notarial act authorized by Executive Law Section 135 may be performed as an electronic notarization on any instrument in writing that under applicable law may be signed with an electronic signature provided the Notary is reasonably able to confirm that such instrument is the same instrument in which the principal made a statement or on which the principal executed a signature.
  6. Provides that for an electronic notarial act using communication technology, if the principal is located outside the United States, the record must be filed with or relate to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or involve property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States.
  7. Clarifies that when performing an electronic notarial act relating to execution of instruments in writing, a Notary shall apply an electronic signature, which shall be attached to the electronic record such that removal or alteration of such electronic signature is detectable and will render evidence of alteration of the document containing the Notary signature which may invalidate the electronic notarial act.
  8. Authorizes a Notary to certify that a tangible copy of the signature page and document type of an electronic record remotely notarized by such Notary is an accurate copy of the electronic record.
  9. Provides that a certification of a tangible copy of the signature page and document type of an electronic record remotely notarized by such Notary certification must (b) be dated and signed by the Notary in the same manner as the official signature of the Notary provided to the Secretary of State pursuant to Executive Law Section 131, and (b) comply with Executive Law section 137.
  10. Provides a certificate for a Notary certifying a tangible copy of the signature page and document type of an electronic record remotely notarized by the Notary.
  11. Clarifies that nothing in Executive Law Section 135-c shall be construed as requiring any Notary to perform a remote notarization.
  12. Authorizes a Notary to refuse to perform a notarial act if the Notary is not satisfied that (a) the principal is competent or has the capacity to execute a record, or (b) the principal's signature is knowingly and voluntarily made.
  13. Clarifies that any remote notarization performed in accordance with the law satisfies any requirements of law that a principal personally appear before, be in the presence of, or be in a single time and place with a Notary at the time of the performance of the notarial act, unless a law expressly excludes the authorization provided in temporary Executive Law Section 135-c.

Other Changes

  1. Permits a Notary to affix by electronic means the Notary’s name, the words, “Notary State of New York,” the county in which the Notary originally qualified, and the expiration date of the Notary’s commission beneath the Notary’s signature when performing an electronic notarial act.
  2. Postpones the effective date of the permanent electronic notarization provisions until January 31, 2023.
  3. Clarifies that the temporary remote notarization provisions are effective immediately upon approval by the Governor and are repealed on January 30, 2023.
  4. Clarifies that any recording, backup of a recording, and journal of a remote notarization made in a temporary remote notarization must be retained by the Notary for at least 10 years.
  5. Makes technical changes.

Analysis

In 2021, New York enacted Chapter 767, authorizing remote notarizations effective June 22, 2022. When the Governor signed the bill into law, the Governor asked for a chapter amendment to address matters that were not addressed in the new law. Senate 7780 addresses these concerns by postponing the effective date of Chapter 767 until January 31, 2023, putting in place temporary remote notarization provisions that are effective immediately and until January 30, 2023, and making other changes to the permanent electronic and remote notarization statutes (see “Changes” above). The bill enacts a “temporary” version of Executive Law Section 135-c that is effective until January 30, 2023, and replaces it with a “permanent” version of the very same numbered Section that takes effect January 23, 2023.

Read Senate 7780.

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