NYS Liability and Misconduct 2 — Questions and Answers
Question 1: A New York notary who notarizes a document without the signer physically present (absent RON authorization) is:
- Performing a standard accepted practice
- Guilty of misconduct and the notarization is void (Correct answer)
- Required only to note the absence in the certificate
- Acting lawfully if the signer pre-signed the document
Correct answer: Guilty of misconduct and the notarization is void
Notarizing without the signer's personal appearance is misconduct and renders the notarization void.
Personal appearance before the notary is a fundamental requirement for traditional in-person notarization in New York. A notary who certifies an acknowledgment or administers an oath without the signer being present is performing an unauthorized act. The notarization is void, and the notary faces misconduct charges, potential removal from office, and possible criminal liability.
Question 2: Under New York Executive Law §135-a, a notary who makes a false certificate is guilty of:
- A Class A misdemeanor
- A Class B misdemeanor
- A felony (Correct answer)
- An infraction with a civil fine only
Correct answer: A felony
Executive Law §135-a makes deliberately making a false certificate a felony.
New York Executive Law §135-a specifically provides that a notary public who in the execution of the powers conferred upon them makes any false certificate is guilty of a felony. This severe criminal penalty reflects the serious harm that false notarizations can cause to individuals and the public trust in official certifications.
Question 3: If a New York notary negligently fails to verify a signer's identity, allowing a fraud to occur, the notary may be held:
- Criminally liable only
- Only liable to the Secretary of State in an administrative proceeding
- Civilly liable for damages caused by the negligent notarization (Correct answer)
- Not liable — notaries are immune from civil suits
Correct answer: Civilly liable for damages caused by the negligent notarization
Negligent notarization that causes damages exposes the notary to civil liability.
A New York notary who fails to exercise reasonable care in performing notarial duties — such as not properly verifying a signer's identity — and whose negligence contributes to harm suffered by a third party can be held civilly liable for those damages. Notaries do not enjoy immunity from civil suits for negligent performance of their official duties.
Question 4: The Secretary of State may remove a New York notary for which of the following?
- Moving to a new county without updating filings
- Charging a fee that exceeds the statutory maximum (Correct answer)
- Failing to renew within the grace period
- Notarizing documents in a county other than where registered
Correct answer: Charging a fee that exceeds the statutory maximum
Charging fees above the statutory maximum is a violation that can result in removal from office.
Under New York Executive Law §135, the Secretary of State may remove a notary for misconduct in the performance of their duties, which includes charging fees in excess of those permitted under §136. Other serious misconduct such as fraud, false certification, and conviction of disqualifying crimes are also grounds for removal.
Question 5: A person who impersonates a New York notary public is subject to:
- A civil fine only
- Criminal prosecution for fraudulent impersonation (Correct answer)
- A warning from the Secretary of State
- Mandatory registration as a notary within 30 days
Correct answer: Criminal prosecution for fraudulent impersonation
Impersonating a notary public is criminal fraud in New York.
Impersonating a notary public in New York is a criminal offense. The New York Penal Law prohibits criminal impersonation of public officials, and impersonating a notary — who is an official public officer — would fall under these provisions. Additionally, Executive Law §135-a specifically criminalizes fraudulent use of notarial powers.
Question 6: A New York notary's bond or errors and omissions insurance serves primarily to:
- Protect the notary from criminal prosecution
- Protect the public from financial harm caused by the notary's errors (Correct answer)
- Guarantee that all notarizations are legally valid
- Satisfy the application fee requirement
Correct answer: Protect the public from financial harm caused by the notary's errors
Notary bonds and E&O insurance protect the public from financial loss due to notarial errors.
A notary bond (or errors and omissions insurance) is a financial protection mechanism for the public. If a notary's error or negligence causes financial harm to a third party, the bond or E&O policy provides a fund from which the injured party can recover damages. While New York does not require notary bonds as a condition of commission, many notaries obtain them for professional protection and public trust.
NYS Liability and Misconduct 2
A New York notary who notarizes a document without the signer physically present (absent RON authorization) is: