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This entry was published on 2022-04-29
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SECTION 135-C
Remote ink notarization
Executive (EXC) CHAPTER 18, ARTICLE 6
* § 135-c. Remote ink notarization. 1. Definitions. As used in this
section, the following terms have the following meanings:

(a) "Communication technology" means being able to see, hear, and
communicate with another individual in real time using electronic means.

(b) "Credential" means the data, or government issued or approved
physical object upon which the data may reside, that includes the
principal's photograph, signature, and multiple credential security
features such as: a holographic image, raised or textured print,
microprinting, laser engraving, optical variable ink, long life
multi-layer PET (polyethylene terephthalate)/PVC (polyvinyl chloride)
credential body construction, the issuing agency's seal, or the
credential holder's physical characteristics (such as height, eye color,
hair color).

(c) "Credential analysis" means a process or service which
authenticates a credential through review of public and proprietary data
sources, and complies with the following criteria:

(i) uses automated software processes to aid the notary public in
verifying the identity of a remotely located individual;

(ii) ensures that the credential passes an authenticity test,
consistent with sound commercial practices that:

(1) uses appropriate technologies to confirm the integrity of visual,
physical, or cryptographic security features;

(2) uses appropriate technologies to confirm that the identification
credential is not fraudulent or inappropriately modified;

(3) uses information held or published by the issuing source or an
authoritative source, as available, to confirm the validity of personal
details and identification credential details; and

(iii) provides output of the credential analysis to the notary public;
and

(iv) enables the notary public to visually compare the credential and
the remotely located individual as viewed by the notary public in real
time through communication technology.

(d) "Electronic" shall have the same meaning as set forth in section
three hundred two of the state technology law.

(e) "Electronic record" means information evidencing any act,
transaction, occurrence, event or other activity, produced or stored by
electronic means and capable of being accurately reproduced in forms
perceptible by human sensory capabilities.

(f) "Electronic signature" means an electronic sound, symbol, or
process, attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the record.

(g) "Identity proofing" means a process or service through which a
third party confirms the identity of a principal through review of
personal information from public and proprietary data sources as may be
further defined by regulation.

(h) "Notarial act" means the performance of an act authorized by
section one hundred thirty-five of this article.

(i) "Principal" means an individual:

(i) whose signature is reflected on a record that is notarized;

(ii) who has taken an oath or affirmation administered by a notary
public; or

(iii) whose signature is reflected on a record that is notarized after
the individual has taken an oath or affirmation administered by a notary
public.

(j) "Record" means information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is retrievable in
perceivable form.

(k) "Remote notarization" means the act of performing any notarial act
that is authorized under section one hundred thirty-five of this article
where a principal who is not in the physical presence of the notary
public obtains a notarial act under subdivision two of this section.

(l) "Remote presentation" means display of a credential to the notary
public through communication technology in a manner that allows the
notary public to compare the principal to the credential facial image
and to examine the front and back of any credential.

(m) "Wet signature" means a signature affixed in ink to a paper
document.

(n) "Outside the United States" means a location outside the
geographic boundaries of the United States, Puerto Rico, the United
States Virgin Islands, and any territory, insular possession, or other
location subject to the jurisdiction of the United States.

2. Any notary public qualified under this article is hereby authorized
to perform a remote notarization by utilizing communication technology
that allows the notary public to interact with a principal, provided
that all conditions of this subdivision are met.

(a) The notary public must verify the identity of the principal in a
manner consistent with the requirements of subdivision three of this
section. A notary public may require an individual to provide additional
information or identification credentials necessary to assure the notary
public of the identity of the principal.

(b) The communication technology conference must allow for real-time,
direct interaction between the principal and the notary public.

(c) The audio-video communication technology 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.

(d) A recording, containing both audio and video, of the remote
notarization must be retained by the notary public for at least ten
years.

(e) The notary public must take reasonable steps to ensure that a
backup of the recording of the remote notarization exists and is secured
from unauthorized use. A notary public may 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
upon request.

(f) The notary public is able reasonably to confirm that a record
before the notary public is the same record in which the principal made
a statement or on which the principal executed a signature.

(g) For remote notarization involving paper documents, the principal
may transmit by mail, fax or electronic means a legible signed record
directly to the notary public, and the principal may appear before the
notary public by means of communication technology to perform the
notarial act in accordance with this section. The notary public may
notarize the record within a reasonable time and transmit the record
back to the principal by mail, fax or secure electronic means. An
electronically transmitted document notarized pursuant to this paragraph
shall be considered an original document.

(h) The notary public must be physically situated in New York state at
the time of the remote notarization. The principal may be situated in
New York, outside of New York but inside the United States, or outside
the United States, provided:

(1) the record is to be filed with or relates to a matter before a
public official or court, governmental entity, or other entity subject
to the jurisdiction of the United States; or

(2) the record involves property located in the territorial
jurisdiction of the United States or involves a transaction
substantially connected with the United States.

(i) The notary public must maintain a journal of each remote
notarization performed pursuant to this section, which upon demand,
shall be subject to inspection by the secretary of state. The journal
required by this subdivision shall be maintained by each notary public
for as long as such notary public remains in office and then for an
additional five years thereafter. Each journal entry shall:

(1) Be made contemporaneously with the performance of the notarial
act;

(2) Indicate the date and approximate time of the notarial act;

(3) Indicate the name of the principal;

(4) Indicate the technology used to perform the remote notarization;

(5) Indicate the number and type of notarial services provided; and

(6) Indicate the type of credential used to identify the principal.

3. The notary public must 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 public's personal knowledge of the principal; or

(b) Identification of the principal who appears remotely before the
notary by means of communication technology by each of the following:

(i) Remote presentation by the principal of a credential;

(ii) Credential analysis; and

(iii) Identity proofing of the principal; or

(c) Oath or affirmation of a credible witness who personally knows the
principal and who is either personally known to the notary public or who
is identified by the notary public under paragraph (b) of this
subdivision.

4. Notwithstanding article nine of the real property law or any other
law to the contrary, any act performed in conformity with this section
shall satisfy 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 public at the time of the performance of the notarial act, unless
a law expressly excludes the authorization provided for in this section.

5. Any person who suffers actual damages as a result of a principal
who violates any of the provisions of this section, shall have a civil
cause of action against any such principal in a court of competent
jurisdiction.

6. The secretary of state may 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 related to the use
and verification of an electronic signature, and any other matters
necessary to administer the provisions of this section.

7. Pursuant to section one hundred thirty of this article, the
secretary of state may suspend or remove from office any notary public
that violates this section.

8. (a) Nothing in this section shall be construed as requiring a
notary public to use an electronic signature to perform a remote
notarization. A remote notarization may be completed by wet signature
or electronic signature.

(b) When performing a remote notarization relating to an electronic
record, a notary public shall apply an electronic signature that is: (i)
unique to the notary public; (ii) capable of independent verification;
(iii) retained under the notary public's sole control; (iv) attached or
logically associated with the electronic record; and (v) 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.

(c) A county clerk may certify pursuant to section one hundred
thirty-three of this article the autograph signature of a notary public
on any record that has been remotely notarized in compliance with this
section.

9. A notarial act performed according to this section shall contain a
statement on the notarial certificate substantially as follows: "This
remote notarial act involved the use of communication technology."

10. Notwithstanding section one hundred thirty-six of this article, a
notary public that performs a remote notarization pursuant to this
section shall be entitled to the following fees:

(a) For administering an oath or affirmation, and certifying the same
when required, except where another fee is specifically prescribed by
statute, five dollars.

(b) For taking and certifying the acknowledgment or proof of execution
of a written instrument, by one person, five dollars, and by each
additional person, five dollars, for swearing each witness thereto, five
dollars.

11. Nothing in this section shall be construed as requiring any notary
public to perform a remote notarization. A notary public may refuse to
perform a notarial act if the notary public is not satisfied that (i)
the principal is competent or has the capacity to execute a record, or
(ii) the principal's signature is knowingly and voluntarily made.

12. (a) A notary public may certify that a tangible copy of the
signature page and document type of an electronic record remotely
notarized by such notary public is an accurate copy of such electronic
record. Such certification must (i) be dated and signed by the notary
public in the same manner as the official signature of the notary public
provided to the secretary of state pursuant to section one hundred
thirty-one of this article, and (ii) comply with section one hundred
thirty-seven of this article.

(b) A county clerk, city registrar, or other recording officer where
applicable shall accept for recording a tangible copy of an electronic
record and that is otherwise eligible to be recorded under the laws of
this state if the record has been certified by a notary public or other
individual authorized to perform a notarial act.

(c) A certification in substantially the following form is sufficient
for the purposes of this subdivision:
CERTIFICATE OF AUTHENTICITY
State of New York )

) ss.:
County of ...............)
On this ...... day of ...... in the year ....., I certify that the
signature page of the attached record (entitled ......) (dated ......)
is a true and correct copy of the signatures affixed to an electronic
record printed by me or under my supervision. I further certify that, at
the time of printing, no security features present on the electronic
record indicated any changes or errors in an electronic signature in the
electronic record after its creation or execution.

(Signature and title of notary public)

(official stamp or registration number, with the expiration
date of the notary public's commission)

* NB Effective until January 31, 2023

* § 135-c. Electronic notarization. 1. Definitions. (a) "Communication
technology" means an electronic device or process that: (i) allows a
notary public and a remotely located individual to communicate with each
other simultaneously by sight and sound; and (ii) when necessary and
consistent with other applicable law, facilitates communication with a
remotely located individual who has a vision, hearing, or speech
impairment.

(b) "Electronic" shall have the same meaning as set forth in
subdivision one of section three hundred two of the state technology
law.

(c) "Electronic record" means information that is created, generated,
sent, communicated, received or stored by electronic means.

(d) "Electronic notarial act" means an official act by a notary
public, physically present in the state of New York, on or involving an
electronic record and using means authorized by the secretary of state.

(e) "Electronic notary public" or "electronic notary" means a notary
public who has registered with the secretary of state the capability of
performing electronic notarial acts.

(f) "Electronic signature" shall have the same meaning as set forth in
subdivision three of section three hundred two of the state technology
law.

(g) "Principal" means an individual:

(i) whose signature is reflected on a record that is notarized;

(ii) who has taken an oath or affirmation administered by a notary
public; or

(iii) whose signature is reflected on a record that is notarized after
the individual has taken an oath or affirmation administered by a notary
public.

(h) "Record" means information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is retrievable in
perceivable form.

2. Any notary public qualified under this article is hereby authorized
to perform an electronic notarial act by utilizing audio-video
communication technology that allows the notary public to interact with
a principal, provided that all conditions of this section are met.

(a) The methods for identifying document signers for an electronic
notarization shall be the same as the methods required for a paper-based
notarization; provided, however, an electronic notarial act conducted
utilizing communication technology shall meet the standards which have
been approved through regulation by the secretary of state as
acceptable. Such regulations shall include, but not be limited to:

(i) that the signal transmission shall be secure from interception
through lawful means by anyone other than the persons communicating;

(ii) that the communication technology shall permit the notary public
to communicate with the principal live, in real time;

(iii) that the communication technology shall permit the notary to
communicate with and identify the remotely located individual at the
time of the notarial act; and

(iv) a standard that requires two 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
public's personal knowledge of a document signer to satisfy such
requirement.

(b) If video and audio conference technology has been used to
ascertain a document signer's identity, the electronic notary shall keep
a copy of the recording of the video and audio conference and a notation
of the type of any other identification used. The recording shall be
maintained for a period of at least ten years from the date of
transaction.

3. Registration requirements. (a) Before performing any electronic
notarial act or acts, a notary public shall register the capability to
notarize electronically with the secretary of state on a form prescribed
by the secretary of state and upon payment of a fee which shall be set
by regulation.

(b) In registering the capability to perform electronic notarial acts,
the notary public shall provide the following information to the
secretary of state, notary processing unit:

(i) the applicant's name as currently commissioned and complete
mailing address;

(ii) the expiration date of the notary public's commission and
signature of the commissioned notary public;

(iii) the applicant's e-mail address;

(iv) the description of the electronic technology or technologies to
be used in attaching the notary public's electronic signature to the
electronic record; and

(v) an exemplar of the notary public's electronic signature, which
shall contain the notary public's name and any necessary instructions or
techniques that allow the notary public's electronic signature to be
read.

4. Types of electronic notarial acts. (a) Any notarial act authorized
by section one hundred thirty-five of this article may be performed
electronically as prescribed by this section if: (i) for execution of
any instrument in writing, under applicable law that document may be
signed with an electronic signature and the notary public 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; and (ii) the electronic notary public is located within the
state of New York at the time of the performance of an electronic
notarial act using communication technology, regardless of the location
of the document signer. If the principal is outside the United States,
the record or subject of the notarial act:

(1) is to be filed with or relates to a matter before a public
official or court, governmental entity, or other entity subject to the
jurisdiction of the United States; or

(2) shall involve property located in the territorial jurisdiction of
the United States or shall involve a transaction substantially connected
with the United States.

(b) An electronic notarial act performed using communication
technology pursuant to this section satisfies any requirement of law of
this state that a document signer personally appear before, be in the
presence of, or be in a single time and place with a notary public at
the time of the performance of the notarial act.

5. Form and manner of performing the electronic notarial act. (a) When
performing an electronic notarial act relating to execution of
instruments in writing, a notary public 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.

(b) The notary public's electronic signature is deemed to be reliable
if the standards which have been approved through regulation by the
secretary of state have been met. Such regulations shall include, but
not be limited to, the requirements that such electronic signature be:

(i) unique to the notary public;

(ii) capable of independent verification;

(iii) retained under the notary public's sole control;

(iv) attached to the electronic record; and

(v) linked to the data in such a manner that any subsequent
alterations to the underlying document are detectable and may invalidate
the electronic notarial act.

(c) The notary public's electronic signature shall be used only for
the purpose of performing electronic notarial acts.

(d) The remote online notarial certificate for an electronic notarial
act shall state that the person making the acknowledgement or making the
oath appeared through use of communication technology.

(e) The secretary shall adopt rules necessary to establish standards,
procedures, practices, forms, and records relating to a notary public's
electronic signature. The notary public's electronic signature shall
conform to any standards adopted by the secretary.

6. Recording of an electronic record. (a) If otherwise required by law
as a condition for recording that a document be an original document,
printed on paper or another tangible medium, or be in writing, the
requirement is satisfied by paper copy of an electronic record that
complies with the requirements of this section.

(b) If otherwise required by law as a condition for recording, that a
document be signed, the requirement may be satisfied by an electronic
signature.

(c) A requirement that a document or a signature associated with a
document be notarized, acknowledged, verified, witnessed, or made under
oath is satisfied if 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 the document or signature. A
physical or electronic image of a stamp, impression, or seal need not
accompany an electronic signature if the notary has attached an
electronic notarial certificate that meets the requirements of this
section.

(d) (i) A notary public may certify that a tangible copy of the
signature page and document type of an electronic record remotely
notarized by such notary public is an accurate copy of such electronic
record. Such certification must (1) be dated and signed by the notary
public in the same manner as the official signature of the notary public
provided to the secretary of state pursuant to section one hundred
thirty-one of this article, and (2) comply with section one hundred
thirty-seven of this article.

(ii) A county clerk, city registrar, or other recording officer where
applicable shall accept for recording a tangible copy of an electronic
record and that is otherwise eligible to be recorded under the laws of
this state if the record has been certified by a notary public or other
individual authorized to perform a notarial act.

(iii) A certification in substantially the following form is
sufficient for the purposes of this subdivision:
CERTIFICATE OF AUTHENTICITY
State of New York )

) ss.:
County of ...............)
On this ...... day of ...... in the year ....., I certify that the
signature page of the attached record (entitled ......) (dated ......)
is a true and correct copy of the signatures affixed to an electronic
record printed by me or under my supervision. I further certify that, at
the time of printing, no security features present on the electronic
record indicated any changes or errors in an electronic signature in the
electronic record after its creation or execution.

(Signature and title of notary public)

(official stamp or registration number, with the expiration
date of the notary public's commission)

7. Change of e-mail address. Within five days after the change of an
electronic notary public's e-mail address, the notary public shall
electronically transmit to the secretary of state a notice of the
change, signed with the notary public's official electronic signature.

8. No notary public or business employing the services of a notary
public operating in the state of New York shall exclusively require
notarial transactions to utilize electronic notarization.

9. Nothing in this section shall be construed as requiring any notary
public to perform a notarial act using electronic communication
technology. A notary public may refuse to perform such a notarial act if
the notary public 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.

10. Notwithstanding article nine of the real property law or any other
law to the contrary, any act performed in conformity with this section
shall satisfy 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 public at the time of the performance of the notarial act, unless
a law expressly excludes the authorization provided for in this section.

* NB Effective January 31, 2023