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  • Posted on: Mar 27 2020

Historically, an individual was required to appear, in person, before the notary public acknowledging his/her signature.  See In re Napolis, 169 A.D. 469, 471 (1st Dep’t 1915) (“The court again wishes to express its condemnation of the acts of notaries taking acknowledgments or affidavits without the presence of the party whose acknowledgment is taken or the affiant, and that it will treat as serious professional misconduct the act of any notary thus violating his official duty.”); Ambulatory Surgery Center of Brooklyn v. Helpers of God’s Precious Infants, Inc., 283 A.D.2d 528, 529 – 530 (2nd Dep’t 2001) (finding that counsel’s false representation that affiants signed affidavits in his presence was “wholly improper” and “had no probative value”).  Similarly, the Notary Public License Law [which can be found on the New York Secretary of State Website], relying in part on In re Napolis, provides that the:

[u]se of the office of notary in other than the specific, step-by-step procedure required is viewed as a serious offense by the Secretary of State. The practice of taking acknowledgments and affidavits over the telephone, or otherwise, without the actual, personal appearance of the individual making the acknowledgment or affidavit before the officiating notary, is illegal.

Indeed, a notary public that commits “fraud or deceit” in performing his/her duties “is guilty of a misdemeanor.”  New York Executive Law § 135-a (2).

Similarly, the Uniform forms of certificates of acknowledgement or proof within (see RPL § 309-a) and without (see RPL § 309-b) the state of New York recites that the affiant “personally appeared” before the notary public taking the acknowledgment.

Recognizing the difficulty and the dangers of requiring in person meetings for notaries due to the coronavirus pandemic, on March 19, 2020, Governor Andrew Cuomo issued an Executive Order temporarily relaxing [presently through April 18, 2020] the notary public laws to permit the completion of notary services “utilizing audio-visual means.”  Thus, the operative provisions of Executive Order 202.7 provide:

  • Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met: 
    • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after; 
    • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
    • The person must affirmatively represent that he or she is physically situated in the State of New York; 
    • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed; 
    • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and, 
    • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

The ability for the general public to have their signatures (whether on an acknowledgment, an affidavit or otherwise) notarized through the use of audio/video means will further the objectives of the stay-at-home and social distancing rules established to lessen the impact of the coronavirus pandemic.

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