Remote electronic notarization is now permanent in the state of New York, and notaries who register with the Department of State beginning Feb. 1, 2023, and comply with the new rules, will be able to perform electronic notarizations.

The new law keeps the state on par with other states in advancing notarial services through technology, enabling transactional, corporate and litigation matters to proceed efficiently, regardless of geography.

NY Executive Law 135-c authorizes notaries to perform electronic notarial acts, using software that complies with Department of State regulations to create an electronically generated and saved record. Traditional notaries seeking to provide electronic notarizations can begin registering next week and can consult the state’s published a list of FAQs for further guidance. New regulations pertaining to both traditional and electronic notarization have also gone into effect and are codified at 19 NYCRR Ch. V, Sub. Ch. E, Part 182.2-11.

Importantly, beginning Jan. 25, 2023, all notaries, whether providing traditional in-person or electronic services, must include their official number on all notarized documents. If the stamp does not include the number, it must be hand-written below the stamp.

In addition, all notaries must keep a journal of each notarial act that documents (i) the date, time and type of notarial acts performed; (ii) the name and address of involved individuals; and (iii) the type of credential and verification procedures used. The notarial journal must be kept for a minimum of 10 years.

Also, a notary may not notarize any documents related to transactions in which the notary is a party or has a direct financial interest.

Electronic notarization means Remote Ink Notarization, or using remote communication technology to generate a paper document, will no longer be permitted in New York after Jan. 31. Remote Ink Notarization was authorized on a temporary basis during the COVID-19 pandemic.

Remote electronic notarizations – the basics

Electronic notarizations may be done remotely only if the notary and signer are communicating simultaneously by sight and sound and using means authorized by the Secretary of State. Notaries performing electronic notarizations must be physically located in the state of New York at the time of the notarization, while signers do not need to be within state when executing the documents. The signer also may be located outside of the U.S. at the time of notarization, provided the notary verifies, through verbal confirmation by the signer, that the record or document: (i) is to be filed with or related to a matter before a government institution, or (ii) involves property located within the territorial jurisdiction of the U.S. or a transaction connected with the U.S.

Before performing an electronic notarization, the notary must obtain satisfactory evidence of the signer’s identity. This requires that either (a) the notary attest that the signer is personally known to the notary; or (b) the use of a third-party provider to perform identity verification, credential analysis, and identity proofing. Commercial software is available to perform identity verification and proofing and credential analysis, and notaries must select platforms that comply with state requirements. Servicers providing such platforms must also be compliant if they represent that their specific platform complies with state law.

In addition to providing the ability to communicate in real time, the technology must have security protocols to prevent unauthorized access and link electronic signatures to the notarized record in such a way that subsequent alterations are detectable.

Notaries must keep audio-visual recordings and ensure backup recordings for a minimum of 10 years. Notaries who fail to comply with this and any other new regulations will not be eligible for renewal of their notary license.

Electronic notaries may charge up to $25 for each notarial act. The fee may be charged for each notarial act performed during one electronic session.

Harris Beach attorneys are reviewing the new law and can assist clients as they navigate the transition to electronic notarization. If you have questions about this topic or related issues, please reach out to attorney Melanie C. Marotto at (716) 200-5230 and; Paulo M. Coelho at (516) 880-8389 and; or to the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.