MATTER OF WILL OF MALTZ v. << (2023)

At the request of the court, counsel for petitioner submits an affirmation requesting this court accept for filing a waiver and consent, dated August 16, 2023, executed through the use of electronic notarization. Petitioner's counsel cites compliance with New York Executive Law § 135-c.

NY Executive Law § 135-c, effective January 31, 2023, permits the use of electronic notarization in New York. Under this statute, to perform an electronic notarization act in New York, the notary public must be located in New York State at the time of the notarization, while the principal is not required to be located within the state (Id. at 4). The notary must identify the signer as proscribed in the statute, including having personal knowledge of the identity of the principal or identification through the use of credential analysis (NY Exec Law § 135-c [2]). The notary must be able to see and interact, in real-time, with the principal to administer the oath and complete the notarial act using audio-visual communication technology (Id. at 2[a]). Such technology is required to have security protocols in place to prevent unauthorized access to the session. A recording of the session must be retained for ten years (Id. at 2[b]).

After the principal electronically signs the document, the notary must affix their electronic signature and electronic notary stamp to the document (NY Exec Law § 135-c [5]). Such electronic signature must be on file with the Secretary of State as the electronic notary's “exemplar” (Id.). An electronic notary may have more than one exemplar, each is typically differentiated by the communication technology and digital certificate service utilized to perform acts under the statute. Such exemplar is also on file in the county clerk's office in which the notary is registered and is available for comparison by the public (NY Exec. Law § 131 [2][d]).

In the jurat, the statement “This remote notarial act involved the use of communication technology” must be obvious (NY Exec Law § 135-c [5]). For an electronic notarization to be considered effective, the signatures must be “attached or logically associated with an electronic record by use of a digital certificate that utilizes public key infrastructure as defined in 19 NYCRR Part 182 and is capable of independent verification” and “linked to the data in such a manner that any subsequent alterations to the underlying record are detectable and may invalidate the electronic notarial act” (19 NYCRR Part 182.4 [4][ii], [iv]; see also NY Exec Law § 135-c [3], [5]).

The notary, whether electronic or traditional, must also maintain a journal of the act which details the date and time of the notarization, the name of the principal, the audio-visual technology used to perform the notarization, the number and type of documents officiated, notarial services provided, and the type of identification/credential presented by the remote signor of the document or documents, for a period of ten years (Id. at 182.9).

The Waiver and Consent submitted to this court for filing includes the electronic signature of the principal and notary, and the statement that the document was electronically notarized involving the use of communication technology. The Waiver and Consent does not contain information regarding the type of communication technology utilized to perform the electronic notarial act, nor is the digital certificate or public key infrastructure employed verifiable on the face of the document. Therefore, the subject document may not satisfy the requirements of NY Exec Law § 135-c and the regulations under 19 NYCRR Part 182.

Neither the Executive law nor the NYCRR elaborate on the reviewer's ability to independently verify the digital certificate or public key infrastructure that would allow the notary public to attach the electronic signature to the document in such a way that removal or alteration of the document containing the notary signature would invalidate the electronic notarial act. Furthermore, since the January 31, 2023 effective date of the statute, the independent verification of the electronic notarial act has not been tested at the trial court level.

For these reasons, this court requested that counsel submit an affirmation regarding the sufficiency of the electronic notarial act. Such affirmation did not discuss the issue of independent verification yet affirmed that the requirements of NY Executive Law § 135-c were followed and that communication technology was used. Counsel for petitioner also correctly notes that the statute does not require that the electronic notary define which communication technology was utilized to perform the notarial act. This court does note however, according to 19 NYCRR 182.9 and NY Exec Law § 135-c, the communication technology employed must be recorded in the notary's journal and such journal presented when subpoenaed. The court did not request the journal herein.

Although on its face, this court is not able to independently verify the digital certificate or public key infrastructure which links the signature to the document, upon the affirmation of counsel that the act complies with statute, this court does therefore deem that Waiver and Consent submitted to court dated August 16, 2023, is accepted for filing.

This decision shall constitute the order of the court.

Matthew J. Titone, S.