Governor Cuomo's Updated Guidance Clarifies That Notaries Must Execute in Ink

2 min

This article reports on the New York Department of State's Guidance to Notaries Concerning Executive Order 202.7, a revised version of which was issued on March 31, 2020, subsequent to an article published here regarding remote notarization rules in New York.

After a brief period of uncertainty and confusion, Governor Cuomo and the New York Department of State have clarified that a New York remote notary must use a traditional wet ink signature when notarizing a document.

As these authors reported in a March 31 article "Governor Cuomo Allows Remote Notarization in New York for the Duration of the COVID-19 State of Emergency," New York followed the lead of many other states in permitting notaries to administer oaths and witness signatures over interactive video conference. As we earlier explained, the March 19 Executive Order 202.7 stated that "any notarial act" in New York was authorized to be performed with audiovisual technology. This language created the impression that the notary was permitted to affix his or her electronic signature before transmitting the document back to the signatory. The initial guidance from the governor's office, dated March 25, 2020, also suggested that after witnessing the signature by electronic audiovisual means, the notary could sign electronically.

Recognizing the need for clarification, the March 31 revised Guidance makes starkly clear that notaries performing notarial acts remotely must "print and sign the document, in ink," and that the notary "may not use an electronic signature to officiate the document." Although notaries are permitted to witness the signatures using electronic technology, the signatory must transmit the executed document to the notary, who must then print and sign it in ink before transmitting the document back to the signatory.

Further clarifying a somewhat muddled issue, the March 31 revised notary guidance also makes clear that only some signatories may use electronic signatures. Unlike many other states that allow the document signatory to apply an electronic signature to all types of documents, New York, in its March 31 revised guidance, insists that the "signatory may use an electronic signature, provided the document can be signed electronically under the Electronic Signatures and Records Act." This New York statute, commonly known as ESRA, permits electronic signatures only in documents related to real property.

Distilling this rule to its essence, notaries may witness signatures by audiovisual technology until Executive Order 202.7 expires on April 18. Furthermore, notaries must use wet ink when signing their names, but the document signatory may use an electronic signature on the document only for instances involving real property.