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 While that Executive Order was eventually rescinded, New York State recently made a revised version of those procedures permanent through a new law that was signed by Governor Kathy Hochul on December 22, 2021,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.
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