N.Y. Exec. Law § 135-c

* § 135-c. Remote ink notarization. 1. Definitions. As used in this\nsection, the following terms have the following meanings:\n (a) "Communication technology" means being able to see, hear, and\ncommunicate with another individual in real time using electronic means.\n (b) "Credential" means the data, or government issued or approved\nphysical object upon which the data may reside, that includes the\nprincipal's photograph, signature, and multiple credential security\nfeatures such as: a holographic image, raised or textured print,\nmicroprinting, laser engraving, optical variable ink, long life\nmulti-layer PET (polyethylene terephthalate)/PVC (polyvinyl chloride)\ncredential body construction, the issuing agency's seal, or the\ncredential holder's physical characteristics (such as height, eye color,\nhair color).\n (c) "Credential analysis" means a process or service which\nauthenticates a credential through review of public and proprietary data\nsources, and complies with the following criteria:\n (i) uses automated software processes to aid the notary public in\nverifying the identity of a remotely located individual;\n (ii) ensures that the credential passes an authenticity test,\nconsistent with sound commercial practices that:\n (1) uses appropriate technologies to confirm the integrity of visual,\nphysical, or cryptographic security features;\n (2) uses appropriate technologies to confirm that the identification\ncredential is not fraudulent or inappropriately modified;\n (3) uses information held or published by the issuing source or an\nauthoritative source, as available, to confirm the validity of personal\ndetails and identification credential details; and\n (iii) provides output of the credential analysis to the notary public;\nand\n (iv) enables the notary public to visually compare the credential and\nthe remotely located individual as viewed by the notary public in real\ntime through communication technology.\n (d) "Electronic" shall have the same meaning as set forth in section\nthree hundred two of the state technology law.\n (e) "Electronic record" means information evidencing any act,\ntransaction, occurrence, event or other activity, produced or stored by\nelectronic means and capable of being accurately reproduced in forms\nperceptible by human sensory capabilities.\n (f) "Electronic signature" means an electronic sound, symbol, or\nprocess, attached to or logically associated with an electronic record\nand executed or adopted by a person with the intent to sign the record.\n (g) "Identity proofing" means a process or service through which a\nthird party confirms the identity of a principal through review of\npersonal information from public and proprietary data sources as may be\nfurther defined by regulation.\n (h) "Notarial act" means the performance of an act authorized by\nsection one hundred thirty-five of this article.\n (i) "Principal" means an individual:\n (i) whose signature is reflected on a record that is notarized;\n (ii) who has taken an oath or affirmation administered by a notary\npublic; or\n (iii) whose signature is reflected on a record that is notarized after\nthe individual has taken an oath or affirmation administered by a notary\npublic.\n (j) "Record" means information that is inscribed on a tangible medium\nor that is stored in an electronic or other medium and is retrievable in\nperceivable form.\n (k) "Remote notarization" means the act of performing any notarial act\nthat is authorized under section one hundred thirty-five of this article\nwhere a principal who is not in the physical presence of the notary\npublic obtains a notarial act under subdivision two of this section.\n (l) "Remote presentation" means display of a credential to the notary\npublic through communication technology in a manner that allows the\nnotary public to compare the principal to the credential facial image\nand to examine the front and back of any credential.\n (m) "Wet signature" means a signature affixed in ink to a paper\ndocument.\n (n) "Outside the United States" means a location outside the\ngeographic boundaries of the United States, Puerto Rico, the United\nStates Virgin Islands, and any territory, insular possession, or other\nlocation subject to the jurisdiction of the United States.\n 2. Any notary public qualified under this article is hereby authorized\nto perform a remote notarization by utilizing communication technology\nthat allows the notary public to interact with a principal, provided\nthat all conditions of this subdivision are met.\n (a) The notary public must verify the identity of the principal in a\nmanner consistent with the requirements of subdivision three of this\nsection. A notary public may require an individual to provide additional\ninformation or identification credentials necessary to assure the notary\npublic of the identity of the principal.\n (b) The communication technology conference must allow for real-time,\ndirect interaction between the principal and the notary public.\n (c) The audio-video communication technology must provide reasonable\nsecurity measures to prevent unauthorized access to the communication\ntechnology and to the methods used to verify the identity of the\nprincipal.\n (d) A recording, containing both audio and video, of the remote\nnotarization must be retained by the notary public for at least ten\nyears.\n (e) The notary public must take reasonable steps to ensure that a\nbackup of the recording of the remote notarization exists and is secured\nfrom unauthorized use. A notary public may authorize a third party to\nretain such recordings on behalf of the notary, provided that all\nrecordings retained by a third party be made available to the secretary\nupon request.\n (f) The notary public is able reasonably to confirm that a record\nbefore the notary public is the same record in which the principal made\na statement or on which the principal executed a signature.\n (g) For remote notarization involving paper documents, the principal\nmay transmit by mail, fax or electronic means a legible signed record\ndirectly to the notary public, and the principal may appear before the\nnotary public by means of communication technology to perform the\nnotarial act in accordance with this section. The notary public may\nnotarize the record within a reasonable time and transmit the record\nback to the principal by mail, fax or secure electronic means. An\nelectronically transmitted document notarized pursuant to this paragraph\nshall be considered an original document.\n (h) The notary public must be physically situated in New York state at\nthe time of the remote notarization. The principal may be situated in\nNew York, outside of New York but inside the United States, or outside\nthe United States, provided:\n (1) the record is to be filed with or relates to a matter before a\npublic official or court, governmental entity, or other entity subject\nto the jurisdiction of the United States; or\n (2) the record involves property located in the territorial\njurisdiction of the United States or involves a transaction\nsubstantially connected with the United States.\n (i) The notary public must maintain a journal of each remote\nnotarization performed pursuant to this section, which upon demand,\nshall be subject to inspection by the secretary of state. The journal\nrequired by this subdivision shall be maintained by each notary public\nfor as long as such notary public remains in office and then for an\nadditional five years thereafter. Each journal entry shall:\n (1) Be made contemporaneously with the performance of the notarial\nact;\n (2) Indicate the date and approximate time of the notarial act;\n (3) Indicate the name of the principal;\n (4) Indicate the technology used to perform the remote notarization;\n (5) Indicate the number and type of notarial services provided; and\n (6) Indicate the type of credential used to identify the principal.\n 3. The notary public must be able to verify the identity of the\nprincipal at the time the notarial act is provided by one of the\nfollowing methods:\n (a) The notary public's personal knowledge of the principal; or\n (b) Identification of the principal who appears remotely before the\nnotary by means of communication technology by each of the following:\n (i) Remote presentation by the principal of a credential;\n (ii) Credential analysis; and\n (iii) Identity proofing of the principal; or\n (c) Oath or affirmation of a credible witness who personally knows the\nprincipal and who is either personally known to the notary public or who\nis identified by the notary public under paragraph (b) of this\nsubdivision.\n 4. Notwithstanding article nine of the real property law or any other\nlaw to the contrary, any act performed in conformity with this section\nshall satisfy any requirements at law that a principal personally appear\nbefore, be in the presence of, or be in a single time and place with a\nnotary public at the time of the performance of the notarial act, unless\na law expressly excludes the authorization provided for in this section.\n 5. Any person who suffers actual damages as a result of a principal\nwho violates any of the provisions of this section, shall have a civil\ncause of action against any such principal in a court of competent\njurisdiction.\n 6. The secretary of state may promulgate regulations establishing\nminimum standards that relate to reasonable security measures to prevent\nunauthorized access to communication technology and to the methods used\nto verify the identity of the principal, requirements related to the use\nand verification of an electronic signature, and any other matters\nnecessary to administer the provisions of this section.\n 7. Pursuant to section one hundred thirty of this article, the\nsecretary of state may suspend or remove from office any notary public\nthat violates this section.\n 8. (a) Nothing in this section shall be construed as requiring a\nnotary public to use an electronic signature to perform a remote\nnotarization. A remote notarization may be completed by wet signature\nor electronic signature.\n (b) When performing a remote notarization relating to an electronic\nrecord, a notary public shall apply an electronic signature that is: (i)\nunique to the notary public; (ii) capable of independent verification;\n(iii) retained under the notary public's sole control; (iv) attached or\nlogically associated with the electronic record; and (v) linked to the\ndata in such a manner that any subsequent alterations to the underlying\nelectronic record are detectable and may invalidate the notarial act.\n (c) A county clerk may certify pursuant to section one hundred\nthirty-three of this article the autograph signature of a notary public\non any record that has been remotely notarized in compliance with this\nsection.\n 9. A notarial act performed according to this section shall contain a\nstatement on the notarial certificate substantially as follows: "This\nremote notarial act involved the use of communication technology."\n 10. Notwithstanding section one hundred thirty-six of this article, a\nnotary public that performs a remote notarization pursuant to this\nsection shall be entitled to the following fees:\n (a) For administering an oath or affirmation, and certifying the same\nwhen required, except where another fee is specifically prescribed by\nstatute, five dollars.\n (b) For taking and certifying the acknowledgment or proof of execution\nof a written instrument, by one person, five dollars, and by each\nadditional person, five dollars, for swearing each witness thereto, five\ndollars.\n 11. Nothing in this section shall be construed as requiring any notary\npublic to perform a remote notarization. A notary public may refuse to\nperform a notarial act if the notary public is not satisfied that (i)\nthe principal is competent or has the capacity to execute a record, or\n(ii) the principal's signature is knowingly and voluntarily made.\n 12. (a) A notary public may certify that a tangible copy of the\nsignature page and document type of an electronic record remotely\nnotarized by such notary public is an accurate copy of such electronic\nrecord. Such certification must (i) be dated and signed by the notary\npublic in the same manner as the official signature of the notary public\nprovided to the secretary of state pursuant to section one hundred\nthirty-one of this article, and (ii) comply with section one hundred\nthirty-seven of this article.\n (b) A county clerk, city registrar, or other recording officer where\napplicable shall accept for recording a tangible copy of an electronic\nrecord and that is otherwise eligible to be recorded under the laws of\nthis state if the record has been certified by a notary public or other\nindividual authorized to perform a notarial act.\n (c) A certification in substantially the following form is sufficient\nfor the purposes of this subdivision:\nCERTIFICATE OF AUTHENTICITY\nState of New York )\n ) ss.:\nCounty of ...............)\nOn this ...... day of ...... in the year ....., I certify that the\nsignature page of the attached record (entitled ......) (dated ......)\nis a true and correct copy of the signatures affixed to an electronic\nrecord printed by me or under my supervision. I further certify that, at\nthe time of printing, no security features present on the electronic\nrecord indicated any changes or errors in an electronic signature in the\nelectronic record after its creation or execution.\n (Signature and title of notary public)\n (official stamp or registration number, with the expiration\ndate of the notary public's commission)\n * NB Effective until January 31, 2023\n * § 135-c. Electronic notarization. 1. Definitions. (a) "Communication\ntechnology" means an electronic device or process that: (i) allows a\nnotary public and a remotely located individual to communicate with each\nother simultaneously by sight and sound; and (ii) when necessary and\nconsistent with other applicable law, facilitates communication with a\nremotely located individual who has a vision, hearing, or speech\nimpairment.\n (b) "Electronic" shall have the same meaning as set forth in\nsubdivision one of section three hundred two of the state technology\nlaw.\n (c) "Electronic record" means information that is created, generated,\nsent, communicated, received or stored by electronic means.\n (d) "Electronic notarial act" means an official act by a notary\npublic, physically present in the state of New York, on or involving an\nelectronic record and using means authorized by the secretary of state.\n (e) "Electronic notary public" or "electronic notary" means a notary\npublic who has registered with the secretary of state the capability of\nperforming electronic notarial acts.\n (f) "Electronic signature" shall have the same meaning as set forth in\nsubdivision three of section three hundred two of the state technology\nlaw.\n (g) "Principal" means an individual:\n (i) whose signature is reflected on a record that is notarized;\n (ii) who has taken an oath or affirmation administered by a notary\npublic; or\n (iii) whose signature is reflected on a record that is notarized after\nthe individual has taken an oath or affirmation administered by a notary\npublic.\n (h) "Record" means information that is inscribed on a tangible medium\nor that is stored in an electronic or other medium and is retrievable in\nperceivable form.\n 2. Any notary public qualified under this article is hereby authorized\nto perform an electronic notarial act by utilizing audio-video\ncommunication technology that allows the notary public to interact with\na principal, provided that all conditions of this section are met.\n (a) The methods for identifying document signers for an electronic\nnotarization shall be the same as the methods required for a paper-based\nnotarization; provided, however, an electronic notarial act conducted\nutilizing communication technology shall meet the standards which have\nbeen approved through regulation by the secretary of state as\nacceptable. Such regulations shall include, but not be limited to:\n (i) that the signal transmission shall be secure from interception\nthrough lawful means by anyone other than the persons communicating;\n (ii) that the communication technology shall permit the notary public\nto communicate with the principal live, in real time;\n (iii) that the communication technology shall permit the notary to\ncommunicate with and identify the remotely located individual at the\ntime of the notarial act; and\n (iv) a standard that requires two or more different processes for\nauthenticating the identity of a remotely located individual utilizing\ntechnology to detect and deter fraud, but which may allow a notary\npublic's personal knowledge of a document signer to satisfy such\nrequirement.\n (b) If video and audio conference technology has been used to\nascertain a document signer's identity, the electronic notary shall keep\na copy of the recording of the video and audio conference and a notation\nof the type of any other identification used. The recording shall be\nmaintained for a period of at least ten years from the date of\ntransaction.\n 3. Registration requirements. (a) Before performing any electronic\nnotarial act or acts, a notary public shall register the capability to\nnotarize electronically with the secretary of state on a form prescribed\nby the secretary of state and upon payment of a fee which shall be set\nby regulation.\n (b) In registering the capability to perform electronic notarial acts,\nthe notary public shall provide the following information to the\nsecretary of state, notary processing unit:\n (i) the applicant's name as currently commissioned and complete\nmailing address;\n (ii) the expiration date of the notary public's commission and\nsignature of the commissioned notary public;\n (iii) the applicant's e-mail address;\n (iv) the description of the electronic technology or technologies to\nbe used in attaching the notary public's electronic signature to the\nelectronic record; and\n (v) an exemplar of the notary public's electronic signature, which\nshall contain the notary public's name and any necessary instructions or\ntechniques that allow the notary public's electronic signature to be\nread.\n 4. Types of electronic notarial acts. (a) Any notarial act authorized\nby section one hundred thirty-five of this article may be performed\nelectronically as prescribed by this section if: (i) for execution of\nany instrument in writing, under applicable law that document may be\nsigned with an electronic signature and the notary public is reasonably\nable to confirm that such instrument is the same instrument in which the\nprincipal made a statement or on which the principal executed a\nsignature; and (ii) the electronic notary public is located within the\nstate of New York at the time of the performance of an electronic\nnotarial act using communication technology, regardless of the location\nof the document signer. If the principal is outside the United States,\nthe record or subject of the notarial act:\n (1) is to be filed with or relates to a matter before a public\nofficial or court, governmental entity, or other entity subject to the\njurisdiction of the United States; or\n (2) shall involve property located in the territorial jurisdiction of\nthe United States or shall involve a transaction substantially connected\nwith the United States.\n (b) An electronic notarial act performed using communication\ntechnology pursuant to this section satisfies any requirement of law of\nthis state that a document signer personally appear before, be in the\npresence of, or be in a single time and place with a notary public at\nthe time of the performance of the notarial act.\n 5. Form and manner of performing the electronic notarial act. (a) When\nperforming an electronic notarial act relating to execution of\ninstruments in writing, a notary public shall apply an electronic\nsignature, which shall be attached to the electronic record such that\nremoval or alteration of such electronic signature is detectable and\nwill render evidence of alteration of the document containing the notary\nsignature which may invalidate the electronic notarial act.\n (b) The notary public's electronic signature is deemed to be reliable\nif the standards which have been approved through regulation by the\nsecretary of state have been met. Such regulations shall include, but\nnot be limited to, the requirements that such electronic signature be:\n (i) unique to the notary public;\n (ii) capable of independent verification;\n (iii) retained under the notary public's sole control;\n (iv) attached to the electronic record; and\n (v) linked to the data in such a manner that any subsequent\nalterations to the underlying document are detectable and may invalidate\nthe electronic notarial act.\n (c) The notary public's electronic signature shall be used only for\nthe purpose of performing electronic notarial acts.\n (d) The remote online notarial certificate for an electronic notarial\nact shall state that the person making the acknowledgement or making the\noath appeared through use of communication technology.\n (e) The secretary shall adopt rules necessary to establish standards,\nprocedures, practices, forms, and records relating to a notary public's\nelectronic signature. The notary public's electronic signature shall\nconform to any standards adopted by the secretary.\n 6. Recording of an electronic record. (a) If otherwise required by law\nas a condition for recording that a document be an original document,\nprinted on paper or another tangible medium, or be in writing, the\nrequirement is satisfied by paper copy of an electronic record that\ncomplies with the requirements of this section.\n (b) If otherwise required by law as a condition for recording, that a\ndocument be signed, the requirement may be satisfied by an electronic\nsignature.\n (c) A requirement that a document or a signature associated with a\ndocument be notarized, acknowledged, verified, witnessed, or made under\noath is satisfied if the electronic signature of the person authorized\nto perform that act, and all other information required to be included,\nis attached to or logically associated with the document or signature. A\nphysical or electronic image of a stamp, impression, or seal need not\naccompany an electronic signature if the notary has attached an\nelectronic notarial certificate that meets the requirements of this\nsection.\n (d) (i) A notary public may certify that a tangible copy of the\nsignature page and document type of an electronic record remotely\nnotarized by such notary public is an accurate copy of such electronic\nrecord. Such certification must (1) be dated and signed by the notary\npublic in the same manner as the official signature of the notary public\nprovided to the secretary of state pursuant to section one hundred\nthirty-one of this article, and (2) comply with section one hundred\nthirty-seven of this article.\n (ii) A county clerk, city registrar, or other recording officer where\napplicable shall accept for recording a tangible copy of an electronic\nrecord and that is otherwise eligible to be recorded under the laws of\nthis state if the record has been certified by a notary public or other\nindividual authorized to perform a notarial act.\n (iii) A certification in substantially the following form is\nsufficient for the purposes of this subdivision:\nCERTIFICATE OF AUTHENTICITY\nState of New York )\n ) ss.:\nCounty of ...............)\nOn this ...... day of ...... in the year ....., I certify that the\nsignature page of the attached record (entitled ......) (dated ......)\nis a true and correct copy of the signatures affixed to an electronic\nrecord printed by me or under my supervision. I further certify that, at\nthe time of printing, no security features present on the electronic\nrecord indicated any changes or errors in an electronic signature in the\nelectronic record after its creation or execution.\n (Signature and title of notary public)\n (official stamp or registration number, with the expiration\ndate of the notary public's commission)\n 7. Change of e-mail address. Within five days after the change of an\nelectronic notary public's e-mail address, the notary public shall\nelectronically transmit to the secretary of state a notice of the\nchange, signed with the notary public's official electronic signature.\n 8. No notary public or business employing the services of a notary\npublic operating in the state of New York shall exclusively require\nnotarial transactions to utilize electronic notarization.\n 9. Nothing in this section shall be construed as requiring any notary\npublic to perform a notarial act using electronic communication\ntechnology. A notary public may refuse to perform such a notarial act if\nthe notary public is not satisfied that (a) the principal is competent\nor has the capacity to execute a record, or (b) the principal's\nsignature is knowingly and voluntarily made.\n 10. Notwithstanding article nine of the real property law or any other\nlaw to the contrary, any act performed in conformity with this section\nshall satisfy any requirements at law that a principal personally appear\nbefore, be in the presence of, or be in a single time and place with a\nnotary public at the time of the performance of the notarial act, unless\na law expressly excludes the authorization provided for in this section.\n * NB Effective January 31, 2023\n