During the COVID-19 pandemic, remote notarization was permitted in an effort to assist citizens of New York State with obtaining necessary notarial services when many in-person services were suspended. Legislative discussions about making remote notarization a permanent option for New Yorkers ensued. As a result, on January 31, 2023, New York Executive Law 135-c became effective, allowing New York State notaries to perform electronic notarizations.
New York Executive Law 135-c codifies New York State’s recent, permanent acceptance of remote notarization. In sum, the law permits notarization of a document by a notary present in New York State without the need for the signer to be physically present. This new law comes with significant benefits, including the ability to have a document notarized with the signer in a different state or country as well as the option to have a notarized document transmitted or filed electronically immediately after signing. Any document may be notarized electronically, and a county clerk, city registrar, or other recording officer must accept the notarized document as long as an original Certificate of Authenticity is attached to the document. The requisite language for a Certificate of Authenticity is provided directly in the statute so certified electronic notaries may use the statute to create their Certificates of Authenticity for signers.
However, there are strict requirements to successfully electronically notarize a document. An electronic notary must have an audiovisual platform that is secure from interception, and the software or platform must permit the notary to communicate with and identify the signer with two or more different processes for authenticating identity in real time (e.g., personal knowledge and a photo identification). Further, an electronic notary must affix a unique electronic stamp that is used only for electronic notarial acts, is capable of independent verification of the electronic notary, is retained under the electronic notary’s control, and is linked to the document being notarized so that any subsequent alterations to the document are detectable. All of these requirements were implemented in attempts to prevent fraud.
The notary must make and keep an audiovisual recording of the electronic notarization and ensure there is a backup of the recording. This recording must be kept for a minimum of 10 years. Additionally, an electronic notary may (but is not required to) charge $25 per notarial act performed (i.e., per stamp!). An electronic notary may also charge $2 per Certificate of Authenticity. While utilizing an electronic notary may become pricey, the opportunity for ease of access and quick turnaround may make this option worthwhile for a variety of documents that require notarization. The New York State Bar Association is in the process of vetting online vendors that can provide all of the required technical support through a one-stop platform. Various other online vendors are now entering the electronic notary business as well.
If you have any questions regarding the content of this alert, please contact Briana Krawczyk, associate, at bkrawczyk@barclaydamon.com, or another member of the firm’s Trusts & Estates Practice Area.