TO INFINITY AND BEYOND (OR AT LEAST APRIL 18, 2020): NEW YORK STATE LAW TEMPORARILY AUTHORIZES THE REMOTE NOTARIZATION OF DOCUMENTS
March 30, 2020
With the spread of COVID-19 in this State, New York’s government has taken unprecedented steps to address many issues that the COVID-19 pandemic has raised. One of those unprecedented steps is the recent issuance of an Executive Order that temporarily authorizes the remote notarization of documents in New York until April 18, 2020.
As effective March 3, 2020, Executive Law § 29-a provides that, subject to the federal constitution, the state constitution, and applicable federal statutes and regulations, the Governor of this State may issue an Executive Order temporarily suspending any New York statute, among other things, “during a state disaster emergency, if compliance with [the subject statute] would prevent, hinder, or delay action necessary to cope with the disaster” (see Executive Law § 29-a). Executive Law § 29-a authorizes the Governor to issue, by Executive Order, “any directive during a state disaster emergency”, such as an epidemic and a disease outbreak (see id.). The powers vested in the Governor, pursuant to Executive Law § 29-a, during a state disaster emergency are quite broad.
On March 19, 2020, Governor Cuomo issued Executive Order No. 202.7, which temporarily authorizes the remote notarization of documents in New York until April 18, 2020 (see N.Y. Governor’s Executive Order No. 202.7 [Mar. 20, 2020]). Executive Order No. 202.7 provides that “[a]ny notarial act that is required under New York State law is authorized to be performed” by “audio-video technology”, provided that certain conditions are met (see id.). The conditions that must be met are as follows:
- “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” (see id.).
As it relates to notarial acts, the practical effect of Executive Order 202.7 appears to be that, subject to the aforementioned conditions and until April 18, 2020, a person located in New York State can now have a notary public notarize his or her signature without having to physically appear before the notary public. A person need not risk exposing himself or herself to COVID-19 by going into a public place – whether it be an attorney’s office, a bank, or a post office – to have his or her signature notarized on a document that requires a notarial act in order to be valid. Likewise, during these unusual times in which nursing homes are largely closed to visitors, a notary public need not visit a nursing home resident in order to notarize the resident’s signature. In the context of the public health crisis in which we presently find ourselves, the possibility for the remote notarization of documents appears to be an appropriate response.
While Governor Cuomo’s authorization for the remote notarization of documents expires on April 18, 2020, it remains to be seen whether the “cat will be out of the bag” when the COVID-19 pandemic subsides. Indeed, it will be interesting to see whether New York’s Legislature follows the lead of several other states by enacting legislation that permanently authorizes the remote notarization of documents.