N.Y. Executive Law § 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.