Law Committee

Audio Visual Notarization, as mandated by Executive Order 202.7, has been extended to May 6^th pursuant to EO 202.101. By way of review, any notarial act required by NYS law may be performed using audio-visual technology provided:

Person seeking notary services, provides photo ID during the video conference;
Video conference allows for direct interaction between the notary and person;
Person affirmatively represents he/she is situated in NYS;
Person transmits by fax or electronic mean a legible copies of the executed documents;
Notary transmits, by fax or electronic means, notarized copies of same;
Original executed documents, together with copies of notarized documents, are sent to the Notary within 30 days after execution to allow notary to notarize original documents

The 2021-22 Executive Budget:

Included in the budget hidden in the TED Bill as Part P, is an amendment to the Executive Law that seeks to “establish procedures to permit notaries to rely on approved technologies to verify identity, notarize documents and exercise notarial authority remotely.” Part P adds a new section to Executive Law §142 (§142-b) titled “Remote Notarization”. This amendment seems to be speaking about electronic signatures but, upon further review, it is clear that, despite the confusing language, the term “remote online notarization” in this amendment refers to audio visual notarization (not for a resulting electronic signature) because the notarial acting is occurring remotely. Some of the requisite procedures include: 1. authentication of the signer using knowledge based authentication; 2. authentication of the visual platform; 3. retention of the notarial act recording but allowing for a third party to retain same for notary; 4. acknowledgements specific to RON notaries; and 5. wet signatures (in fact, it prohibits electronic signatures).

The budget also includes, under the Revenue Bill as Part U, a proposed amendment to Real Property Law §333, which prescribes the combining of the TP-584 and the RP-5217 by the Commissioner of Taxation and Finance into one form. It also proposes that the Commissioner implement an online system by which to e-file the consolidated form. The RPT would be paid directly to the Commissioner but the county clerk shall still receive the same fees they currently collect, even though the forms are e-filed and taxes paid directly to the Commissioner. The e-filing system is not mandatory and parties may still use the existing process to pay transfer tax.

The Remote Online Notary Bill (S1780/A399):

The Senate Finance committee voted on the RON bill and it passed today. It is now placed on the Senate Floor Calendar, which means that it could be brought up for a full Senate vote at any time. This version of the RON bill is not perfect but seems to have incorporated some of the NYSLTA’s recommendations. While not perfect, some of the requirements are as follows: 1. authentication of the signer using knowledge based authentication or biometric data; 2. no authentication of the visual platform is prescribed; 3. allows for any licensed notary to conduct, so long as notary is registered to perform electronic notaries with the Secretary of State; and 4. provides that an electronic notarial signature be used that is unique to the notary, capable of independent verification, retained under notary’s control and linked to the data, in such a manner that any alteration would be detected and would invalidate the signature.

CE Credit for Diversity, Inclusion & Elimination of Bias:

The Department of Financial Services has proposed an amendment to 11 NYCRR 20 (Regulations 9, 18 and 29) (section that applies to Brokers, Agents and Other Licensees generally) that will require insurance producers and public adjusters to have at least one credit of continuing education in the area of Diversity, Inclusion and Elimination of Bias when renewing their licensing term.

Myrtle 684, LLC, v. Samuel Tauber

On December 23, 2020, the Appellate Division, Second Department, a judgment was rendered in Myrtle 684, LLC, v. Samuel Tauber, Respondent, and Investors Bank, Appellant, et al. [2020 NY Slip Op 07901 [189 AD3d 1431], affirming the decision of the lower court that a judgment lien in favor of Samuel Tauber was not reduced due to an erroneous transcription of the judgment amount in the judgment docket. The decision explains that while CPLR §5018(c), specifies that an entry to the docket shall include, “the sum recovered or directed to be paid in figures,” and that the judgment creditor is responsible for ensuring that the docket entry provides notice of the existence of its judgment, it is the accurate name of the debtor in such an entry that provides notice of the lien. “Although Tauber, as the lienholder, had the burden to set forth sufficient information on the judgment docket to provide notice to future purchasers or encumbrancers, upon doing so, the purchasers or encumbrancers who failed to investigate further did so at their peril.” “The judgment docket index is merely notice of a lien and the lien is the judgment.” Id at 3.

LEGAL AND REGULATORY UPDATE BY THE NYSLTA LAW COMMITTEE
Vincent Danzi (Chair), Senior Vice President & Senior Counsel, First Nationwide Title – An AmTrust Financial Company
Catherine Castiglia Canino, (Vice Chair), New York State Counsel, The Security Title Guarantee Corporation of Baltimore