Notary Requirements – New and Old
[Parts of this article are adapted from a presentation at the Elder Law and Special Needs Section Summer 2023 Meeting].
Types of Notarial Acts
There are basically two types of notarial acts: (1) acknowledging someone’s signature with an acknowledgement and (2) administering an oath and signing a “jurat.”
Certificate of an Acknowledgment
The authority for an acknowledgement is in the Real Property Law (RPL). RPL § 309-a provides uniform forms of certificates of acknowledgment or proof within the state. Other sections provide for corporate acknowledgements and acknowledgments outside the state.
Taking acknowledgments without the presence of the party whose acknowledgment is taken is considered serious professional misconduct and violating of official duty. The practice of taking acknowledgments (or 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. Penalties will be discussed below.
Oath and Affirmation
Notaries public must administer oaths and affirmations in a manner and form as prescribed by the Civil Practice Law and Rules. An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs. CPLR 2309(b). “Whatever the form adopted, it must be in the presence of an officer authorized to administer it, and it must be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.” Bookman v. City of New York, 200 N.Y. 53, 56 (1910). The person taking the oath must personally appear before the notary; an oath cannot be administered over the telephone. In re Napolis, 169 A.D. 469, 155 N.Y.S. 416 (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.”
The simplest form in which an oath may be lawfully administered is: “Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?” Alternatively, the following affirmation may be used. This affirmation is legally equivalent to an oath and is just as binding: “Do you solemnly, sincerely and truly declare and affirm that the statements made by you are true and correct?”
When an oath is administered the person taking the oath must express assent to the oath repeated by the notary by the words “I do” or some other words of like meaning. A notary public does not fulfill his duty by merely asking a person whether the signature on a purported affidavit is his. An oath must be administered.
An agent under a Power of Attorney cannot swear to the truth of a statement by signing an affidavit in the name of a principal. U.S. Bank N.A. v. Allen, 63 Misc. 3d 1207(A) (Sup. Ct. Kings Co. 2019). A notary public cannot administer an oath to himself or herself.
The Verification Procedures Used for Any Personal Appearance Before a Notary
Whether an acknowledgement or an oath, the verification procedures used for any personal appearance before a notary is the same and is found at 19 N.Y.C.R.R. § 182.5 (b): For any individual signing a document who physically appears before a notary public, satisfactory evidence of identity requires identity verification through:
(1) presentation of the back and front of an identification card issued by a governmental agency provided the card:
(i) is valid and current;
(ii) contains the photographic image of the bearer;
(iii) has an accurate physical description of the bearer, if applicable; and
(iv) includes the signature of the bearer;
(2) at least two current documents issued by an institution, business entity, or federal or state government with at least the individual’s signature;
(3) attestation by the notary that the individual is personally known to them;
(4) the oath or affirmation of a witness who is personally known to both the individual and notary; or
(5) the oath or affirmation of two witnesses who know the individual personally and provide identification that meets the requirements of (b)(1) above.
Note that these methods of verification are disjunctive, that is, any one of the identification procedures is sufficient.
Documentation or Witnessing Required for Identity Verification
The record keeping requirement discussed below includes the verification procedures used for any personal appearance before the notary and the type of credential used to identify the principal. 19 N.Y.C.R.R. § 182.9.
Department of State wrote in its Assessment of Public Comments on the regulation:
With respect to the necessary documentation required for this and other forms of identity verification, DOS deems the acknowledgement required to be sufficient because 19 N.Y.C.R.R. §182.9 requires notaries to maintain records that must include “the type of credential used to identify the principal” and “the verification procedures used for any personal appearance before the notary public.” It is expected that if a witness known to the individual and the notary is used to verify identity, this will be documented by the notary public in accordance with the rules governing record-keeping. Because the rules otherwise address documentation of this issue, no change in the acknowledgement procedure is necessary.
Department of State, Assessment of public comments. NYS Register 7/27/22.
Record Keeping
New regulations at 19 N.Y.C.R.R. § 182.9 require notaries to maintain records for all notarial acts. Records must be made contemporaneously with the notarial act and must include:
- the date, approximate time, and type of notarial acts performed;
- the name and address of any individuals for whom a notarial act was performed;
- the number and type of notarial services provided;
- the type of credential used to identify the principal;
- the verification procedures used for any personal appearance before the notary; and
- for electronic notarial acts, identification of the communication technology, certification authority, and verification providers used.
Record storage may be made through a third party if safeguarded through a password or other secure means of authentication or access. 19 N.Y.C.R.R. § 182.9(a).
It should be noted that the statutory authority for record keeping applies only to electronic notary acts using electronic technology for signer identification purposes. Executive Law § 135-c. There was no statutory basis for a record keeping and retention requirement prior to the recent passage of the electronic notarization legislation. However, the new regulations contained new record-keeping requirements for all notarial acts. 19 N.Y.C.R.R. § 182.9.
The Department of State, Assessment of public comments states:
There is no requirement that notaries keep information disclosing personally identifiable information not otherwise required by recordkeeping requirements in § 182.9 provided by the signatories, but all notaries must be documenting the type of identification provided to the notary to comply with 19 N.Y.C.R.R. §182.5(a).
Notaries are expected to follow applicable legal requirements in retaining and disposing of information. See General Business Law §§399-h and 899-bb.
The Department of State, Assessment of Public Comments. NYS Register 7/27/22.
These records must be maintained for at least 10 years and must be “capable of being produced to the secretary of state and others as necessary in relation to the performance of the notary public’s obligations” under the notary law.
Interest as a Disqualification and Notarizing for a Family Member
A notary public should not take an acknowledgment to a legal instrument to which the notary is a party in interest. Armstrong v. Combs, 15 A.D. 246, 44 N.Y.S. 171 (3d Dep’t 1897).
Unlike some states, New York does not disqualify notaries from notarizing documents on the basis of family relationship. However, if you are a party to or directly and pecuniarily interested in the transaction in some way, you cannot notarize. If you’re not sure whether you’d stand to benefit from notarizing a document for a relative, it’s better to be safe and refer the relative to another Notary who’s not related or involved in the transaction. The Notary Public Code of Professional Responsibility offers helpful guidance. It urges the notary to decline to notarize for any family member related by blood, marriage, or adoption in any degree of lineage. It also calls for notaries to avoid even the appearance of partiality, which can happen in many cases involving family members.
Is a Notary Required to Notarize a Document?
19 N.Y.C.R.R. § 182.3 (Requirements for Notaries) only provides: (b) A notary may refuse to perform a notarial act if the notary public is not satisfied that: (1) the principal is competent or has the capacity to execute a record; and/or (2) the principal’s signature is knowingly and voluntarily made.
Penal Law § 195.00 (Official misconduct) provides: A public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit: . . . He/she knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
Malfeasance Liability
An officer authorized to take the acknowledgment or proof of a conveyance or other instrument, or to certify such proof or acknowledgment, or to record the same, who is guilty of malfeasance or fraudulent practice in the execution of any duty prescribed by law in relation thereto, is liable in damages to the person injured. Real Property Law § 330.
Damages are recoverable from a notary for false certificate. Action for damages was sustained where a notary certified that mortgagor had appeared and acknowledged a mortgage. Kainz v. Goldsmith, 231 A.D. 171, 246 N.Y.S. 582 (1st Dep’t 1930).
Criminal Penalties
A notary public who knowingly makes a false certificate that a deed or other written instrument was acknowledged by a party thereto is guilty of forgery in the second degree, which is a class D Felony punishable by imprisonment for a term of not exceeding seven years. Penal Law, §§ 170.10 and 70.00(2)(d). A false acknowledgement is a forgery. While the absence of knowledge or criminal intent would absolve the notary from criminal liability, the conveyance, of which the false certification is an essential part, is a forgery and, therefore, invalid. Caccioppoli v. Lemmo, 152 A.D. 650, 137 N.Y.S. 643 (1912).
A public servant is guilty of official misconduct (Penal Law § 195.00) when, with intent to obtain a benefit or to injure or deprive another person of a benefit:
He/she commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or he/she knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
This raises a couple of questions: (1) Is failure to keep a record “Official Misconduct”? (2) Does refusing to notarize an acknowledgement or administer an oath when proper verification has been provided and the notary fee paid constitute official misconduct?
Attorney Discipline
The person taking the oath must personally appear before the notary; an oath cannot be administered over the telephone. In In re Napolis, 169 A.D. 469, 155 N.Y.S. 416 (1st Dep’t 1915) the court stated:
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.
. . . considering the youth and inexperience of the respondent, . . . the absence of any possible motive that would lead him to commit the offenses with which he is charged, and his full and frank disclosures to the court, the court will confine its discipline to a severe censure . . .
In In re Caiazza, 36 A.D. 2d 297 (2d Dep’t 1971) the attorney “falsely certified” as a notary public that the subscribing witnesses had appeared before him. Acting as attorney in the matter, he was guilty of fraud in that he failed to disclose that the probate decree was based on false depositions. The respondent’s misconduct was not deliberate or intentional but inadvertent; he was shockingly and inexcusably careless, but he did not act deliberately or intentionally and there was no purpose or intent to mislead and no one was damaged thereby. Therefor the attorney was censured.
In Matter of Toback, 199 A.D.3d 99, 153 N.Y.S. 3d 457 (1st Dep’t 2021) the sanction of an attorney’s disbarment, as reciprocal discipline for the sanction imposed by the Florida Supreme Court, was warranted because of the seriousness of the misconduct at issue, namely, knowing false notarization, false sworn written statements, and repeated false deposition testimony. Respondent witnessed and notarized an agreement outside the presence of one of the purported signers; signer’s father was present and indicated that his son had signed the agreement; signer was not present and respondent did not witness him sign the agreement.
Recent Legislation
New Procedure for Renewal of Notary Commission: Chapter 188 of the Laws of 2023 signed by Governor June 29, 2023, and effective immediately, amends the Executive Law §§ 131-133 to require renewal of notary public commissions to be submitted to and processed by the secretary of state.
Applications for a notary commission post-marked, submitted to or received by the county clerk prior to effective date, but not yet processed, may be processed by the county clerk to which any such application has been submitted.
Allowing Affirmation by Any Person in a Civil Action: S5162 (Hoylman-Sigal) and A5772 (Lavine) amends CPLR 2106 to allow any person to submit an affirmation under penalty of perjury in lieu of an affidavit in a civil action. Currently only attorneys and certain health care professionals are allowed to submit affirmations. As of the date of this writing it has not been signed into law.
David Goldfarb is “of counsel” to the Grimaldi Yeung Law Group. He was formerly the managing partner of Goldfarb Abrandt & Salzman LLP. He was the co-author of New York Elder Law (Lexis/Matthew Bender) from 1999 to 2019. He is a former chair of the Elder Law and Special Needs Section of the New York State Bar Association. He was a member of the NYSBA Task Force on the Power of Attorney and helped draft the changes that were signed into law in 2020 and 2021. He is a member of the NYSBA Task Force on Notarization.
