S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2373

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 19, 2011
                               ___________

Introduced  by  Sen.  STEWART-COUSINS -- read twice and ordered printed,
  and when printed to be committed to the Committee on Energy and  Tele-
  communications

AN  ACT to amend the state technology law, the real property law and the
  civil practice law and rules, in  relation  to  permitting  electronic
  recording of instruments affecting real property

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 3 and 4 of section 307 of the state technology
law, such section as renumbered by chapter 437 of the laws of 2004,  are
amended to read as follows:
  3.  [To  any  conveyance  or other instrument recordable under article
nine of the real property law.
  4.] To any other document that the electronic facilitator has  specif-
ically excepted, pursuant to the rules and regulations of the electronic
facilitator, from the application of this article.
  S 2. Section 290 of the real property law, subdivision 4 as amended by
chapter 569 of the laws of 1925, subdivision 5 as amended by chapter 317
of  the  laws  of 1943 and subdivision 6 as renumbered by chapter 227 of
the laws of 1926, is amended to read as follows:
  S 290. Definitions; effect of article. 1. The term "real property," as
used in this article, includes lands, tenements  and  hereditaments  and
chattels real, except a lease for a term not exceeding three years.
  2.  The  term  "purchaser" includes every person to whom any estate or
interest in real property is conveyed for a valuable consideration,  and
every assignee of a mortgage, lease or other conditional estate.
  3.  The  term "conveyance" includes every written instrument, by which
any estate or interest in real property is created,  transferred,  mort-
gaged  or  assigned,  or  by which the title to any real property may be
affected, including an instrument in execution of a power, although  the
power  be one of revocation only, and an instrument postponing or subor-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07544-01-1
              

S. 2373                             2

dinating a mortgage lien; except a will, a lease for a term not  exceed-
ing  three  years,  an  executory  contract  for the sale or purchase of
lands, and an instrument containing a power to convey real  property  as
the agent or attorney for the owner of such property.
  4.  The term "recording officer" means the county clerk of the county,
except in a county having a register, where it means the register of the
county.
  5. "Recording" or "recorded" means the  entry,  at  length,  upon  the
pages of the proper record books in a plain and legible hand writing, or
in  print  or in symbols of drawing or by photographic process or partly
in writing, partly in printing, partly in symbols of drawing  or  partly
by  photographic  process  or  by  any combination of writing, printing,
drawing or photography or either or any two of them, OR BY AN ELECTRONIC
PROCESS BY WHICH A RECORD OR INSTRUMENT AFFECTING REAL  PROPERTY,  AFTER
DELIVERY  IS  INCORPORATED  INTO  THE  PUBLIC  RECORD.    "Recording" or
"recorded" also means the reproduction of instruments by  microphotogra-
phy  or  other photographic process on film which is kept in appropriate
files.
  6.  "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY HAVING ELECTRICAL,
DIGITAL, MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC OR  SIMILAR  CAPA-
BILITIES.
  7.  "ELECTRONIC  RECORD"  MEANS INFORMATION EVIDENCING ANY ACT, TRANS-
ACTION, OCCURRENCE, EVENT OR OTHER ACTIVITY, PRODUCED OR STORED BY ELEC-
TRONIC MEANS AND CAPABLE OF BEING ACCURATELY REPRODUCED IN FORMS PERCEP-
TIBLE BY HUMAN SENSORY CAPABILITIES.
  8. "ELECTRONIC SIGNATURE" MEANS AN ELECTRONIC SOUND, SYMBOL, OR  PROC-
ESS,  ATTACHED  TO OR LOGICALLY ASSOCIATED WITH AN ELECTRONIC RECORD AND
EXECUTED OR ADOPTED BY A PERSON WITH THE INTENT TO SIGN THE RECORD.
  9. "PAPER DOCUMENT" MEANS A DOCUMENT IN A FORM THAT IS NOT ELECTRONIC.
  10.  "DIGITIZED PAPER DOCUMENT" MEANS A DIGITIZED  IMAGE  OF  A  PAPER
DOCUMENT  THAT  ACCURATELY DEPICTS THE INFORMATION ON THE PAPER DOCUMENT
IN A FORMAT THAT CANNOT BE ALTERED WITHOUT DETECTION.
  11. "WET SIGNATURE" MEANS A SIGNATURE AFFIXED  IN  INK  OR  PENCIL  OR
OTHER MATERIAL TO A PAPER DOCUMENT.
  12.  This  article  does not apply to leases for life or lives, or for
years, heretofore made, of lands in either of the  counties  of  Albany,
Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware or Schenectady.
  S 3. The real property law is amended by adding a new section 291-i to
read as follows:
  S 291-I. VALIDITY OF ELECTRONIC RECORDING. 1.  NOTWITHSTANDING ANY LAW
TO  THE  CONTRARY,  (A)  WHERE  A LAW, RULE OR REGULATION REQUIRES, AS A
CONDITION FOR RECORDING, THAT AN INSTRUMENT AFFECTING REAL  PROPERTY  BE
AN  ORIGINAL,  BE  ON PAPER OR ANOTHER TANGIBLE MEDIUM OR BE IN WRITING,
THE REQUIREMENT IS SATISFIED BY A DIGITIZED PAPER DOCUMENT OR  AN  ELEC-
TRONIC RECORD OF SUCH INSTRUMENT;
  (B)  WHERE  A  LAW,  RULE  OR  REGULATION REQUIRES, AS A CONDITION FOR
RECORDING, THAT AN INSTRUMENT AFFECTING REAL  PROPERTY  BE  SIGNED,  THE
REQUIREMENT  IS  SATISFIED,  WHERE  THE INSTRUMENT EXISTS AS A DIGITIZED
PAPER DOCUMENT, IF THE DIGITIZED IMAGE OF A WET SIGNATURE OF THE  PERSON
EXECUTING  SUCH  INSTRUMENT APPEARS ON SUCH DIGITIZED PAPER DOCUMENT OR,
WHERE THE INSTRUMENT EXISTS AS AN ELECTRONIC RECORD, IF  THE  INSTRUMENT
IS SIGNED BY USE OF AN ELECTRONIC SIGNATURE;
  (C)  WHERE  A  LAW,  RULE  OR  REGULATION  REQUIRES, AS A CONDITION OF
RECORDING, THAT AN INSTRUMENT AFFECTING REAL  PROPERTY  OR  A  SIGNATURE
ASSOCIATED WITH SUCH AN INSTRUMENT BE NOTARIZED, ACKNOWLEDGED, VERIFIED,
WITNESSED OR MADE UNDER OATH, THE SIGNATURE REQUIREMENT IS SATISFIED IF:

S. 2373                             3

(I)  THE  DIGITIZED IMAGE OF A WET SIGNATURE OF THE PERSON AUTHORIZED TO
PERFORM THAT ACT AND ANY STAMP, IMPRESSION OR SEAL REQUIRED BY LAW TO BE
INCLUDED, APPEARS ON A DIGITIZED PAPER DOCUMENT OF SUCH  INSTRUMENT;  OR
(II)  THE  ELECTRONIC SIGNATURE OF THE PERSON AUTHORIZED TO PERFORM THAT
ACT, AND ALL OTHER INFORMATION REQUIRED TO BE INCLUDED, IS  ATTACHED  TO
OR  LOGICALLY  ASSOCIATED  WITH AN ELECTRONIC RECORD OF SUCH INSTRUMENT,
PROVIDED, HOWEVER THAT NO PHYSICAL  OR  ELECTRONIC  IMAGE  OF  A  STAMP,
IMPRESSION OR SEAL SHALL BE REQUIRED TO ACCOMPANY SUCH ELECTRONIC SIGNA-
TURE.
  (D)  WHERE  A  LAW,  RULE  OR  REGULATION  REQUIRES, AS A CONDITION OF
RECORDING AN INSTRUMENT AFFECTING REAL PROPERTY, THAT  ANY  ACCOMPANYING
DOCUMENT  BE  FILED  THEREWITH,  THE REQUIREMENT IS SATISFIED IF, IN THE
CASE OF RECORDING BY ELECTRONIC MEANS, A  DIGITIZED  PAPER  DOCUMENT  OR
ELECTRONIC  RECORD OF ANY SUCH ACCOMPANYING DOCUMENT IS PRESENTED TO THE
RECORDING OFFICER AT THE SAME TIME AS SUCH  INSTRUMENT  IS  RECORDED  BY
ELECTRONIC  MEANS;  PROVIDED  THAT EACH SUCH DOCUMENT OR RECORD SHALL BE
PRESENTED TO THE RECORDING OFFICER AS A SEPARATE DIGITIZED  PAPER  DOCU-
MENT OR ELECTRONIC RECORD UNTO ITSELF.
  2.  (A)  A  RECORDING  OFFICER  MAY  RECORD A DIGITIZED PAPER DOCUMENT
PURSUANT TO THIS SECTION IF SUCH DOCUMENT IS AFFIRMED AS A  TRUE,  ACCU-
RATE  AND  COMPLETE COPY OF THE ORIGINAL PAPER DOCUMENT. THE AFFIRMATION
CONCERNING SUCH DIGITIZED PAPER DOCUMENT SHALL BE MADE BY THE  CUSTODIAN
OF THE ORIGINAL PAPER DOCUMENT AND THE SIGNATURE OF THAT PERSON SHALL BE
ACKNOWLEDGED  IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS ARTI-
CLE GOVERNING ACKNOWLEDGEMENT OR PROOF OF A CONVEYANCE OF REAL PROPERTY.
THE AFFIRMATION SHALL BE TRANSMITTED WITH SUCH DIGITIZED PAPER  DOCUMENT
AND SHALL BE RECORDED BY THE RECORDING OFFICER AS A PART OF THE DOCUMENT
BEING RECORDED. THE AFFIRMATION CONCERNING SUCH DIGITIZED PAPER DOCUMENT
MUST  CONFORM  SUBSTANTIALLY  WITH  THE FOLLOWING FORM, THE BLANKS BEING
PROPERLY FILLED:

     AFFIRMATION CONCERNING DIGITIZED PAPER DOCUMENTS PRESENTED FOR
                                RECORDING
STATE OF NEW YORK)
              SS:
COUNTY OF _______)
I                  HEREBY AFFIRM, THAT THE DIGITIZED  PAPER  DOCUMENT(S)
PRESENTED HEREWITH WAS (WERE) CREATED BY A SOFTWARE APPLICATION OR OTHER
ELECTRONIC  PROCESS WHICH STORES AN IMAGE OF THE ORIGINAL PAPER DOCUMENT
AND WHICH DOES NOT PERMIT ADDITIONS, DELETIONS, OR CHANGES TO THE  DIGI-
TIZED  IMAGE,  OR  IF  ADDITIONS, DELETIONS, OR CHANGES ARE PERMITTED, A
MEDIA TRAIL EXISTS WHICH CREATES AN ELECTRONIC  RECORD  WHICH  MAKES  IT
POSSIBLE  TO  IDENTIFY  THESE  CHANGES.  I AFFIRM THAT I HAVE PERSONALLY
EXAMINED ALL PAGES OF THE ORIGINAL PAPER DOCUMENT(S) WHICH CONTAIN(S)  A
WET  SIGNATURE  AND  COMPARED  THEM  TO ALL PAGES OF THE DIGITIZED PAPER
DOCUMENT PRESENTED HEREWITH FOR RECORDING  AND  THE  ATTACHED  DIGITIZED
PAPER DOCUMENT IS A TRUE, ACCURATE, AND COMPLETE ELECTRONIC IMAGE OF THE
ORIGINAL PAPER DOCUMENT. I FURTHER AFFIRM THAT EACH SIGNATURE OR MARK ON
THE ORIGINAL PAPER DOCUMENT IS A WET SIGNATURE OR MARK.
SUBSCRIBED AND AFFIRMED, UNDER THE PENALTY OF PERJURY,
by ________________________ on _________________________
   PRINT NAME OF AFFIRMANT          INSERT DATE
___________________________
SIGNATURE OF AFFIRMANT
  ON  THE  _____  DAY  OF ______ IN THE YEAR ______ BEFORE ME PERSONALLY
APPEARED __________________, TO MAKE  THIS  AFFIRMATION  CONCERNING  THE

S. 2373                             4

DIGITIZED  PAPER  DOCUMENT  PRESENTED  FOR RECORDING AND/OR FILING, WITH
WHOM I AM PERSONALLY ACQUAINTED, WHO, BEING BY ME FIRST DULY SWORN,  DID
DEPOSE  AND  SAY  THAT  HE/SHE RESIDES IN ____________________; AND THAT
HE/SHE  IS  THE  INDIVIDUAL  DESCRIBED IN AND WHO EXECUTED THE FOREGOING
AFFIRMATION CONCERNING DIGITIZED PAPER DOCUMENTS PRESENTED FOR RECORDING
OR FILING.
(SIGNATURE OF NOTARY)
  (B) FOR PURPOSES OF THIS SUBDIVISION,  A  CUSTODIAN  OF  THE  ORIGINAL
PAPER  DOCUMENTS  WHO MAKES THE AFFIRMATION REQUIRED BY THIS SUBDIVISION
SHALL NOT BE REQUIRED TO KEEP, HOLD OR MAINTAIN SUCH DOCUMENTS AFTER THE
DATE ON WHICH THE DIGITIZED PAPER DOCUMENTS OF SUCH ORIGINAL PAPER DOCU-
MENTS ARE RECORDED OR FILED.
  3. NOTHING IN THIS SECTION OR ANY OTHER  PROVISION  OF  LAW  SHALL  BE
CONSTRUED  TO  REQUIRE  THE RECORDING BY ELECTRONIC MEANS OF INSTRUMENTS
AFFECTING REAL PROPERTY.
  4. WHERE ANY RECORDING OFFICER PERMITS OR REQUIRES INSTRUMENTS AFFECT-
ING REAL PROPERTY AND ANY ACCOMPANYING DOCUMENTS  TO  BE  PRESENTED  FOR
RECORDING  OR  FILING AS DIGITIZED PAPER DOCUMENTS OR ELECTRONIC RECORDS
PURSUANT TO THIS SECTION, SUCH RECORDING BY ELECTRONIC MEANS SHALL BE IN
ACCORDANCE WITH THE RULES, REGULATIONS, GUIDELINES, STANDARDS AND  POLI-
CIES  ESTABLISHED  BY THE ELECTRONIC FACILITATOR PURSUANT TO SUBDIVISION
FIVE OF THIS SECTION.
  5. IN ORDER TO ENSURE CONSISTENCY IN THE STANDARDS AND  PRACTICES  OF,
AND  THE  TECHNOLOGY  USED BY RECORDING OFFICERS IN THE STATE, THE ELEC-
TRONIC FACILITATOR, AS DESCRIBED IN SECTION THREE HUNDRED THREE  OF  THE
STATE  TECHNOLOGY  LAW, SHALL, CONSISTENT WITH THE PROVISIONS OF ARTICLE
THREE OF THE STATE TECHNOLOGY LAW, PROMULGATE RULES, REGULATIONS, GUIDE-
LINES, STANDARDS AND POLICIES, AND AMENDMENTS  THERETO,  AS  APPROPRIATE
GOVERNING THE USE AND ACCEPTANCE OF DIGITIZED PAPER DOCUMENTS, ELECTRON-
IC  RECORDS  AND  ELECTRONIC  SIGNATURES UNDER THIS ARTICLE, TAKING INTO
CONSIDERATION: (A) THE MOST RECENT  STANDARDS  PROMULGATED  BY  NATIONAL
STANDARD-SETTING  BODIES  SUCH  AS,  WITHOUT  LIMITATION,  THE  PROPERTY
RECORDS INDUSTRY ASSOCIATION; (B) THE VIEWS OF  INTERESTED  PERSONS  AND
GOVERNMENTAL  OFFICIALS  AND  ENTITIES,  INCLUDING  BUT  NOT  LIMITED TO
RECORDING OFFICERS AND REPRESENTATIVES OF THE  STATE  TITLE,  LEGAL  AND
BANKING INDUSTRIES; AND (C) THE NEEDS OF COUNTIES OF VARYING SIZE, POPU-
LATION, AND RESOURCES. SUCH PROMULGATION SHALL INCLUDE BUT NOT BE LIMIT-
ED  TO  STANDARDS  REQUIRING ADEQUATE INFORMATION SECURITY PROTECTION TO
ENSURE THAT ELECTRONIC RECORDS OF INSTRUMENTS  AFFECTING  REAL  PROPERTY
DOCUMENTS ARE ACCURATE, AUTHENTIC, ADEQUATELY PRESERVED AND RESISTANT TO
TAMPERING.
  6. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO AUTHORIZE A
RECORDING  OFFICER  TO  FURNISH DIGITIZED PAPER DOCUMENTS OF THE REPORTS
REQUIRED BY SECTION FIVE HUNDRED SEVENTY-FOUR OF THE REAL  PROPERTY  TAX
LAW.  SUCH REPORTS SHALL BE FURNISHED AS PAPER DOCUMENTS WITH THE REQUI-
SITE NOTATIONS THEREON, EXCEPT WHERE THE STATE BOARD  OF  REAL  PROPERTY
SERVICES  HAS  AGREED  TO ACCEPT DATA SUBMISSIONS IN LIEU THEREOF OR HAS
PROVIDED FOR THE ELECTRONIC TRANSMISSION OF SUCH DATA PURSUANT TO LAW.
  S 4. Section 317 of the real  property  law  is  amended  to  read  as
follows:
  S  317. Order of recording. Every instrument, entitled to be recorded,
must be recorded by the recording officer in the order  and  as  of  the
time  of its delivery to him OR HER therefor, and is considered recorded
from the time of such delivery;  PROVIDED,  HOWEVER,  THAT  A  DIGITIZED
PAPER DOCUMENT OR AN ELECTRONIC RECORD SHALL BE CONSIDERED DELIVERED FOR
PURPOSES OF THIS SECTION AT THE DATE AND TIME OF RECEIPT INDICATED ON AN

S. 2373                             5

ELECTRONIC  OR OTHER WRITTEN NOTIFICATION WHICH SHALL BE PROVIDED BY THE
RECORDING OFFICER IMMEDIATELY UPON RECEIPT OF A DIGITIZED PAPER DOCUMENT
OR ELECTRONIC RECORD.
  S  5.  Clause 1 of subparagraph a of paragraph 4 of subdivision (a) of
section 8021 of the civil practice law and rules, as amended by  chapter
288 of the laws of 2008, is amended to read as follows:
  (1)  For  recording, entering, indexing and endorsing a certificate on
any instrument, five dollars, and, in addition  thereto,  three  dollars
for  each page or portion of a page, and fifty cents for each additional
town, city, block or other indices in which such  instrument  is  to  be
indexed  as  directed by the endorsement thereon. On the assignment of a
mortgage which assigns more than one mortgage or on a release  of  lease
which  releases  more  than one lease, then there shall be an additional
fee of three dollars for every mortgage assigned or  lease  released  in
excess  of one. PROVIDED, HOWEVER, THAT THERE SHALL BE NO FEE FOR A PAGE
TRANSMITTED FOR RECORDING OR FILING THAT CONTAINS ONLY THE CERTIFICATION
AS TO AUTHENTICITY OF DIGITIZED PAPER DOCUMENTS PRESENTED FOR  RECORDING
OR   FILING   PURSUANT   TO  SUBDIVISION  TWO  OF  SECTION  TWO  HUNDRED
NINETY-ONE-I OF THE REAL PROPERTY LAW.
  S 6. This act shall take effect on  the  two  hundred  seventieth  day
after  it shall have become a law; provided, however that the electronic
facilitator shall be authorized to promulgate rules, regulations, guide-
lines, standards and policies to  effectuate  this  act  prior  to  such
effective date.