Is Remote Notarization Here to Stay? New York Legislature Inches Toward Making COVID-19 Emergency Procedures Permanent

5 min

Just over a year ago, these authors published a series of articles reporting on New York State's temporary adoption of rules permitting notary publics to witness signatures remotely through audiovisual technological means. At the beginning of the pandemic, with most business suddenly conducted from kitchens, bedrooms, and basements, notaries likewise were homebound. Pivoting swiftly to accommodate an altered reality, Gov. Andrew Cuomo issued Executive Order 202.7 on March 19, 2020 that, on a temporary basis, waived the rule that the signer had to personally appear before the notary. In a cluster of articles explaining the emergency order, we argued that the dramatic changes to the laws of notarization were "eminently sensible." We also noted that the business community would not want to go back to the earlier "physical presence required" rules. Given that inevitable tendency, we recommended that New York consider joining the growing handful of states allowing remote notarization as a permanent feature.

In January of this year, certain New York legislators tried to add a permanent remote notary authorization to the state's omnibus Budget Bill. See S.2508, 2021-2022 Reg. Sess. (N.Y. 2021). The proposal set forth a complete program as well as strict—perhaps too strict—technological and recordkeeping requirements. On April 19, 2021, Governor Cuomo signed an amended version of S.2508, which, as amended, did not make any changes to the notary laws. The portion of the draft bill pertaining to notaries was excised before passage. But change is likely coming. This is an opportunity for practitioners to glimpse where the Legislature is heading, and for lawmakers to evaluate the features that should be in any notary procedure reformation.

The proposal in the original draft of S.2508 (the "Proposal") preserves many of the logistical features found in the temporary Executive Order of March 2020, while adding certain significant obligations. Under the Proposal and Exec. Order 202.7, the notary may use audio-video conferencing to allow for real-time direct interaction between notary and signer. Prerecorded videos of the act of signing are prohibited. The Proposal remains silent on the question of whether the signer can apply an electronic signature, likely because other areas of New York law govern which documents may or may not be electronically executed. Next in the procedural steps under both the Proposal and Exec. Order 202.7, the signer must transmit the signed signature page directly to the notary public, to which the notary must then apply a "wet signature." Leaving no doubt about the requirement of a wet signature, the Proposal expressly prohibits the notary from using an electronic signature to perform the notarization. The notary then transmits the document back to the signer by mail, fax, or some other secure electronic means. New in the Proposal is a requirement that, if the notarized document is sent to the signer by electronic means, the notary "shall promptly destroy the original after receiving confirmation of the transmission."

Clarifying what remained a muddled question under the earlier Executive Order, the Proposal makes clear that the signer may be located outside the state of New York, but is equally clear that the notary public must be physically situated in New York at the time of the remote notarization.<

In addition to the core requirements placed upon a notary, the Proposal mandates that the notary maintain a journal of each remote notarization performed and that the journal contain the essential data about the time, place, and manner of each notarization. Further, it imposes the greater burden that the notary retain an audio-video recording of the remote notary ceremony for at least ten years. This added requirement will surely be unpopular with notaries operating from small offices or from home. This is a radical departure from the requirements governing in-person notarial acts. The law does not ask the in-person notary to snap a photo of the process, and yet, the law may require the remote notary to preserve a video for ten years. It is not clear whether this requirement is meant to address any real-world concerns—concerns that presumably would have made themselves known in the last year of remote notarizations under the Executive Order.

While a notary public is expressly authorized to employ a third party to retain such recordings on its behalf, this additional expense may give rise to the practice that "solo" notaries, such as those found in libraries and small offices across the state, will avoid remote notarization while continuing the practice of engaging in live, in-person notarizations. This trend, if it comes to pass, will mean either that remote notarizations are more likely to be conducted by larger organizations that have the greater capacity to retain audio and video recordings for a decade, or that notaries will need to partner with—and pay for—a tech provider to comply with the new specifications. Both options emphasize the technology platform over the role and responsibilities of the public office.

The remote notary authorization made it through two rounds of revisions to S.2508, but in March was stripped out before the bill was sent to the governor for his signature. It is possible that it was removed from the omnibus bill to address the recordkeeping concerns articulated here. Regardless, the direction in which we are heading is clear: Remote notarization will be a permanent feature available to New York affiants in the near future.