Does a four-day delay in notarization by the mediator/notary of a separation agreement  executed by the parties in a Zoom session with the mediator render the agreement invalid? In his June 29, 2021 decision in Ryerson v. Ryerson, Warren County Acting Supreme Court Justice Richard B. Meyer held it did not.

The parties used William J. McCoskery as mediator to assist them in resolving various matters attendant to their divorce. They met once in person with the mediator, during which he advised both parties to consult with an attorney. Based upon his discussions with the parties, the mediator prepared a 15-page separation agreement and emailed it to both parties for their review. The husband claimed not to have read the complete document.

The Governor declared the Covid state of emergency on March 7, 2020. Notarization using audio-video technology was authorized by Executive Order No. 202.7. That Order provides:

Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

    • 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 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 same back to the person; and
    • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

The mediator arranged for the separation agreement to be executed by the parties under his supervision via Zoom video conferencing. On Sunday, March 29, 2020, the husband who had previously moved out of the marital residence, went to that residence for the purpose of executing the agreement. When he arrived at the residence, a complete copy of the separation agreement was there for him. Once again, the husband did not read it in its entirety. Moreover, the husband admitted that he did not consult with an attorney about the draft separation agreement. After establishing the Zoom connection with the mediator, the husband and the wife each displayed driver’s license photo identification and confirmed that they were in New York State. The husband signed the agreement first, and then the wife signed it, all in the view of the mediator. The parties also orally confirmed their signatures.

The wife did not have a document scanner or facsimile machine in her home by which she could electronically return the agreement to the mediator that same day. While both parties were present and the video conference was live, the mediator instructed the wife to mail the agreement back to him, which she did that day. The husband raised no objection to that procedure. Within some four days, the mediator received in the mail the original agreement signed by the parties. He compared it word for word with the document he had emailed to them. He then signed acknowledgments of the parties’ signatures and mailed a copy to each of them. The parties began to comply with its terms.

When a dispute arose, the husband made motions to invalidate the agreement. He claimed that according to the Executive Order, once the agreement was signed during the video conference a legible copy of the signed agreement was to be “transmit[ted] by fax or electronic means . . . directly to the Notary on the same date it was signed.” The husband contended that the signed agreement had to be electronically sent to the mediator on the day the parties signed it in order for the acknowledgment to be legally valid.

The husband claimed that the purpose for requiring the electronic transmission of the signed document to the notary on the same day as the document is executed is so that the notary can compare the signed document with the one furnished to the parties for signature. Since the agreement was mailed on the date it was signed and the mediator completed the acknowledgment on a different date, the husband asserted that the entire agreement must be declared null, void and legally invalid.

The Court noted that generally, an acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person. Matisoff v. Dobi, 90 NY2d 127, 132-133 (1997). Second, the acknowledgment necessarily imposes on the signer a measure of deliberation in the act of executing the document.

Here, Justice Meyer ruled the acknowledgment was not substantively defective. At the time the parties executed the separation agreement, the mediator was a notary public, he and the wife identified themselves to the mediator with their respective driver’s licenses before signing the agreement, the mediator witnessed each of them sign the agreement, each party told the mediator that they signed the agreement, and within a few days thereafter the mediator completed a certificate of acknowledgment for each signature that was affixed to the agreement. The husband conceded that the signatures were authentic and that the mediator knew his identity and that of the wife when the agreement was signed. Moreover, no claim was made that the separation agreement before the Court was not the same one that the husband signed. Clearly, the legal form and substance requirements necessary for an acknowledgment to be made were satisfied, and the purposes of an acknowledgment were met.

The Court further noted that the issue of contemporaneous acknowledgment has generally arisen where the certificate of acknowledgment is defective in form and content, or no certificate of acknowledgment was attached to the signed document at all or until at or about the time of commencement of the divorce action. The present case did not fall within the ambit of any of those precedents.

Indeed, the question here involved the issue expressly not addressed in Matisoff, namely, whether an acknowledgment must be completed contemporaneously with the signer’s execution. There, the Court of Appeals stated, “Domestic Relations Law § 236(B)(3) and the Real Property Law do not specify when the requisite acknowledgment must be made. It is therefore unclear whether acknowledgment must be contemporaneous with the signing of the agreement.”

Justice Meyer noted that the Fourth Department in Anderson v. Anderson, 186 A.D.3d 1000 (2020), held that in order for the acknowledgment to have true significance and purpose, it must be done contemporaneously with the parties’ signatures or, if the acknowledgment occurs at a later date, the agreement must be mutually reaffirmed by the parties. However, Justice Meyer noted, two justices dissented holding that there is no statutory requirement.

Justice Meyer stated that there is no mandate that an acknowledgment be made contemporaneously with execution. The acknowledgment here was legally valid.

Nonetheless, even were there such a mandate, there is no statute or case authority which defines “contemporaneous.” “Contemporaneous”  means “existing, occurring, or originating during the same time” or “happening or existing at the same period of time.” Contemporaneous is not to be equated to or confused with “simultaneous,” which is defined as “happening or being done at exactly the same time.” Thus, it is clear that for an acknowledgment to be valid, there can be some time lapse between the signer’s execution and the completion of the acknowledgment.

Justice Meyer held that it was not clear that in requiring the facsimile or email transmission of the signed document, Executive Order No. 202.7 intended to impose a strict requirement that the acknowledgment be completed the same day as the document was executed by the signer(s) thereof.

Justice Meyer concluded that it defies reason and logic that a certificate of acknowledgment and the signed document to which it is affixed is rendered null and void by the mere failure of a notary to affix her or his signature to that certificate and place her or his stamp or seal thereon within one hour, one day, or one week after the notary personally confirms the identity of the signer, observes the signer execute the document, and is told by the signer that the signer executed the document.

Under the circumstances in this case, the mediator’s completion of the certificate of acknowledgment was sufficiently timely so as to be legally valid and the agreement is not rendered invalid or void by that lapse of time. The husband’s motions to declare the separation agreement null, void and of no legal effect were denied, without motion costs.

Comment: Common sense and substance over form prevailed.

However, the steps required by the Executive Order add another layer of assurance. Not only must the notary receive the signed document electronically the day it is signed, but the notary must send it back to the parties. Then, the parties must send back to the notary both the original and the document with the notarized signature they received (electronically) from the notary. When the notary then receives both documents together, the notary can sign the acknowledgment on the original after validating that the original document that will bear now the notary’s original signature is the very same document he witnessed the parties sign.

Here, those extra steps were missing. They could have been substantially done. The parties could have mailed a copy of the signed agreement to the mediator, who would then notarize the copy of the agreement and send it back to the parties. Then, as required, the parties could send back to the notary the original and the copy with the notarized signatures.

Alternatively, in another Zoom session, the mediator could have shown the parties the original agreement he had received in the mail and have them, over Zoom, acknowledge their signatures. Here, the parties did not dispute that the document the mediator signed was the same document they signed in the earlier Zoom session with the mediator.

Barrett D. Mack, of Mack & Associates, PLLC, of Albany, represented the wife. Rose T. Place, Esq., of Lake Placid, represented the husband.