2023 New York Laws › EXC - Executive › Article 6 - Department of State › 135-C - Electronic Notarization.

§  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  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.