Wish You Were Here: Notarizing in the Age of Social Distancing

As we manage the many dislocations resulting from the COVID-19 pandemic, some of the more ordinary tasks still need to be undertaken. One such task is notarization. How can one subscribe and swear “before” a notary in this age of social distancing? Fortunately, workarounds are available, some new and some already existing pre-pandemic.

New York State Notarization Using AV Technology

On March 19, 2020, New York Governor Andrew Cuomo issued Executive Order 202.7 authorizing any notarial act that is required under New York State law to be performed using audio-visual technology, as long as the person seeking the notary’s services is physically present in the State of New York.¹

The conditions of this procedure may be a bit cumbersome, but they can work in a pinch using any available AV application, 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 other 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 notarized document to the person.
• The notary may repeat the notarization of the original signed document as of the date of execution provided the notary receives the original signed document together with the electronically notarized copy within 30 days after the date of execution.²

Assuming all the conditions can be and are met, the following language can be used for notarizations and acknowledgements (additional language in italics):

Notarization

Subscribed and sworn to before me,
utilizing audio-video technology
pursuant to and in compliance with
New York State Executive Order
No. 202.7, issued March 19, 2020,
this ___ day of _______ 20__.

________________________
Notary Public

Acknowledgment

On the ___ day of ________, in the year ____, before me, the
undersigned, personally appeared, by directly interactive video 
conference pursuant to and in compliance with New York State 
Executive Order No. 202.7, issued March 19, 2020, _________,
personally known to me or proved to me by presenting during 
the video conference valid photo ID to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and affirmatively
represented to me that he/she/they is (are) physically situated
in the State of New York and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the
person on behalf of whom the individual(s) acted, executed the instrument.
The person(s) signing the instrument transmitted a legible copy of the 
signed document directly to me by fax or other electronic means 
on the same day that it was signed, and I notarized this transmitted 
copy of the document.

________________________
Notary Public

 

Existing Alternatives

What if the person seeking notarization is not physically in New York? Or the notary does not have access to a fax machine or printer? Even if the notary has such access, what if the person seeking notarization does not? Cell phone photos may qualify as “electronic means,” but what if the document has many pages?³ Plus, what would even a single-page document look like after it has been photographed by the signer, sent to the notary, printed and notarized by the notary and then re-photographed by the notary and re-sent to the signer?

Affirmations by Attorneys and Certain Medical Professionals

Rule 2016(a) of New York’s Civil Practice Law and Rules (“CPLR”) permits unsworn affirmations of certain professionals to be filed in New York State court actions with the same force and effect as an affidavit. The person must be an attorney admitted to practice in the courts of the state or a physician, osteopath or dentist authorized by law to practice in the state. The person must not be a party to the action in which the affirmation is being filed and must affirm it to be true under the penalties of perjury. No notarization is necessary, but these affirmations can be used in only New York State court actions – not for general New York State purposes and not for non-New York State purposes.⁴

Federal Unsworn Declarations

A somewhat less well known but more useful alternative for documents needed for federal purposes can be found at 28 U.S. Code §1746. That provision allows unsworn declarations to be signed by anybody, anywhere and to be used for almost any federal purpose.⁵ Once again, no notarization is necessary.

The form of declaration differs slightly depending upon whether it is executed within the United States, its territories, possessions or commonwealths. If the declaration is executed within those boundaries, the bracketed language can be omitted.

I declare (or certify, verify, or state) under
penalty of perjury [under the laws of the
United States of America] that the foregoing
is true and correct. Executed in
___(City)____, _(ST)_ on ______ __, 2020.

 

Conclusion

Notarizing documents surely is not the highest priority during a pandemic. But if a document needs to be filed or to be exchanged at a closing or otherwise is time sensitive, its importance can seem magnified. With some advance planning and a little ingenuity, signatures can be obtained and documents delivered without increasing the risk of exposure to the virus.

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 ¹ The provisions of Executive Order 202.7 were originally set to expire on April 18, 2020. However, on April 7, 2020, Governor Cuomo issued Executive Order 202.14 which extended those provisions until May 7, 2020. That Executive Order also authorized similar procedures for the witnessing of documents, including many estate planning documents.

² Per Guidance to Notaries Concerning Executive Order 202.7 issued by the State of New York revised March 31, 2020, if the notary and signatory are in different counties, the notary should indicate on the document the county where each person is located. The notary must print and sign the document, in ink, and may not use an electronic signature to officiate the document. The signatory may use an electronic signature, provided the document can be signed electronically under the Electronic Signatures and Records Act (Article 3 of the State Technology Law). If the signatory uses an electronic signature, the notary must witness the electronic signature being applied to the document, as required under Executive Order 202.7.

³ Executive Order 212.14 provides, for witnessed documents, that only the signature pages need to be transmitted. Unless all of the signatories and the witnesses have access to a fax machine or printer, however, it may be difficult to assemble a fully-executed document.

⁴ CPLR Rule 2016(b) makes similar provision for any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the U.S. Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. See also CPLR §2105 which permits an attorney to certify copies of documents.

⁵ The only listed exceptions are a deposition, an oath of office and an oath required to be taken before a specified official other than a notary public.