Making Pandemic Changes Permanent – Electronic Remote Notary Services

On May 19, 2020, former New York Governor Andrew Cuomo issued Executive Order 202.7, authorizing a procedure by which notaries could take oaths or acknowledgments remotely using video conferencing applications. While that Executive Order was eventually rescinded, New York State recently made a revised version of those procedures permanent through a new law that was signed by Governor Kathy Hochul on December 22, 2021, and which will go into effect on June 20, 2022.


While the change will be a welcome one for notaries attempting to operate in this modern, electronic world, the remote notarization procedure permitted by Executive Order 202.7 was, in many ways, much simpler. The new law requires that, prior to engaging in any electronic notarial act, the notary must register with the Secretary of State by providing designated information, including a description of the electronic technology that will be used to attach the notary’s electronic signature to the document in question. The law further requires the following, among other things:

  • the use of audio-visual technology,

  • a live, real-time feed or signal transmission, that allows communication between the notary and the subject or client,

  • the notary be located in New York State at the time of the notarial act,

  • the notary’s electronic signature must be an electronic signature that the notary uses solely for notarial purposes,

  • the electronic notarial certificate must state that the person making the acknowledgment or oath appeared remotely online (it leaves unsaid whether such statement must appear in the jurat or acknowledgment if the notary uses an electronic image of a seal, stamp, or impression instead of such electronic notarial certificate),

  • the creation and maintenance of a recording of the video conference, which must be maintained for at least 10 years, and

  • compliance with the New York Electronic Signatures and Records Act (“ESRA”).

Because the law requires compliance with ESRA, the document must be one that is capable of being notarized electronically. This means that an old-fashioned in-person notary will still be required for certain documents, such wills, trusts, powers of attorney, and health care proxies.


The law also requires the Secretary of State to promulgate regulations establishing standards for electronic notarization. Such proposed regulations have not been issued to date. Anyone looking to take advantage of this new law would be well advised to wait for such regulations before attempting electronic notarization, but preliminary compliance steps should be taken prior to the June, 2022 compliance date.


Our Firm has extensive experience counseling employers/businesses on compliance requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.


 
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2022 Law Offices of Pullano & Farrow PLLC