In an effort to help WordPress accurately reflect the reading time of my article, Remote Swearing of Witnesses, I am going to bounce the old article to this page, and keep the new one where it is. This was originally published November 15, 2017. The new one is published March 9, 2020.
You Can Swear Witnesses Remotely
But Only If You Follow The Rules.
It’s tough being a court reporter and notary public. We’re expected to know the law, and expected not to violate the law, and we are in a position where if and when we do violate the law, we may or may not be held accountable for that. Well, many moons ago a grand discussion was held as to whether we New York notaries are allowed to swear witnesses remotely. I can tell you pretty squarely that the Notary Law of New York State says no. That’s what it says. A big, fat, resounding no. It says that because in 1915 the Appellate Division ruled that the taking of acknowledgments over the phone was unlawful. Matter of fact, some stenographers called the Department of State, which issues our notary public licenses, and the Department of State said no.
But, of course, being the most annoying person on the face of the Earth, I wrote Department of State an e-mail. Why would I do that? Succinctly, under CPLR 3113(d) we are allowed to swear witnesses via telephone. You see the problem here, right? So relatively soon I got an e-mail back from Department of State, and I’m going to link it right here in this really long string of words so that nobody can say I didn’t link it. My initial e-mail was something like: There’s the Notary Law which says no. The CPLR says yes. What is it? Sum and substance, CPLR 3113(d) allows it but you must follow the rules exactly as they are in CPLR 3113(d), which I won’t interpret for you because I’m lazy and not a lawyer. Just kidding. The parties need to stipulate to the way it’s being done. There’s a popular line, “attorneys can’t stipulate away the law.” Thanks to CPLR 3113(d), they can! The main idea is the 1915 case of taking acknowledgments over the phone occurred about 90 years before CPLR 3113(d) came into effect, effectively altering the law for taking oaths.
As a closing note, don’t be too confused by the second half of the e-mail. In the Notary License Law packet it states depositions may not be taken on Sunday. It states this in the glossary towards the end. I’m not kidding. Well, I asked if that was still good law, and as you can see, I was given a stellar answer by the Department of State which said that that determination came out of a 1964 interpretation of law by the Attorney General of the State of New York. All we can do now is petition the Attorney General of the State of New York to change this terrible interpretation of law. Gasp.
Any interesting facts about the law or licensing you want to share? Write in the comments below or ask to write for Stenonymous directly! It’s the best unpaid hobby/volunteer writing assignment you will ever do.
June 9, 2019 update:
This issue came up again. Understandably, some people are skeptical about my claims and conclusions, so I wrote the Department of State the following letter. If I receive a response, it’ll be posted. Let me just say that my take on this is as follows: The reason this is important is because we are promulgating a fear that does not need to be by telling people they cannot swear remotely. It’s not about being smart, or pedantic, or whatever. The law was the same for 90 years, and but for this CPLR provision, would still be. Also, for clarification, the notary license law referred to here is the notary license law packet produced by the Department of State. There is not, as far as I know, actual notary law, but there is notary law from other laws, such as the Real Property Law and CPLR. See my Law for Stenographers post if you want more of that. There’s actually really cool stuff in there. As a matter of fact, there’s stuff like errors in the oath are waived unless a timely objection is made pursuant to CPLR 3115. How cool is that?
My contact form submission to DOS:
“Hello. My name is Christopher Day. I had written the Department of State a few years ago for clarification. The Notary Law packet says a notary may not swear a witness remotely, but CPLR 3113(d) has a special provision for swearing witnesses remotely. In my correspondence with DOS, it was stated that a notary could swear in a witness remotely under CPLR 3113(d). I am writing today because many of my contemporaries rely on the notary license law packet, last revised June 2016, I believe, as a guide for their notarial duties. I am just making a suggestion that the next time that the packet is revised, it be specifically stated that if a witness is sworn remotely, it must be pursuant CPLR 3113(d).
I am sorry for this wordy request. Thank you very much for considering what I have to say and all the hard work you do for New York State.”
June 12, 2019 update:
For the sake of completeness, I did receive a response from the licensing services division on my request. It was not very satisfying, and only said that they would take my comment about the notary lawbook, revised June 2016, into consideration.
January 16, 2020 update:
A reader wrote in and mentioned that CPLR 3116(d) may not apply to New York proceedings that do not occur under the CPLR. That’s true! Definitely cover your bases and make sure you have some kind of justification. While I support notaries doing whatever they’re legally entitled to do, I also don’t want anyone facing disciplinary charges for an odd scenario.