7.2 Consequences of Misconduct

A notarial commission is a public office, and abusing it carries consequences far beyond losing the title. New York exposes a misbehaving notary to three overlapping tracks of liability at once: civil (money damages owed to injured parties), criminal (penalties imposed by the state), and administrative (discipline by the Secretary of State). A single act, such as falsely certifying that someone appeared, can trigger all three simultaneously.

The exam expects you to keep these tracks distinct, because they answer different questions. Civil liability asks 'who pays the victim?' Criminal liability asks 'how does the state punish the notary?' Administrative discipline asks 'can the notary keep the commission?' A fact pattern may implicate one track, two, or all three. Notice also that the tracks are independent: a notary can be sued civilly even if no criminal charge is ever filed, and can be removed administratively without a prior conviction.

Civil Liability: You Are Personally Responsible

Under Executive Law section 135, a notary public is personally liable to the parties injured for all damages sustained by reason of the notary's misconduct or malfeasance in performing any notarial power. Because New York requires no surety bond, there is no bonding company to absorb a claim; the judgment lands on the notary individually. A classic example is the historic line of cases allowing damages against a notary who certified that a mortgagor appeared and acknowledged a mortgage when the mortgagor had not. Recoverable amounts can include compensatory damages, and in egregious cases attorney fees and costs.

Example: A notary certifies an acknowledgment on a deed for a person who never appeared. The deed is used to fraudulently transfer a house, and the true owner loses $300,000 in equity. The owner sues the notary under Executive Law 135. Because there is no bond, the notary is personally on the hook for the proven damages, even if the notary acted only carelessly rather than dishonestly.

Criminal Liability

Certain notarial misconduct is a crime under the Penal Law, and the classification escalates with the seriousness of the falsehood:

• Issuing a false certificate (Penal Law 175.40) is a Class E felony when a public servant, with intent to defraud, deceive, or injure, issues a written instrument knowing it is false.
• Forgery in the second degree (Penal Law 170.10) is a Class D felony; a false certificate of acknowledgment is treated as a forged instrument because it is a written certificate purporting to evidence an official act.
• Official misconduct (Penal Law 195.00) is a Class A misdemeanor when a public servant knowingly commits an unauthorized act of office, or refuses a required duty, with intent to benefit or to injure another.
• Acting without the filed oath of office is a misdemeanor under Public Officers Law 15; a person who performs the functions of a public office before taking and filing the required oath is guilty of a misdemeanor.

The practical lesson: a careless date error invites civil and administrative trouble, but knowingly false certificates can be charged as felonies.

Administrative Discipline by the Secretary of State

The Secretary of State appoints, and therefore can discipline, notaries. The Secretary may suspend or remove a notary for misconduct, but only after the notary has been served with written charges and given an opportunity to be heard. Grounds for removal include making a misstatement of material fact in the commission application, taking the oath of an affiant to a statement the notary knew was false, overcharging fees, and the unauthorized practice of law.

For advertising violations under Executive Law 135-b, the Secretary may impose a civil penalty of up to $1,000, suspend on a second violation, and remove on a third.

Consequences Reference Table

Protecting Yourself

The defenses are procedural: require personal appearance, verify identity, refuse blank or interested requests, keep a complete journal as evidence of proper procedure, and carry optional errors-and-omissions (E&O) insurance for the civil exposure the missing bond leaves open.

A well-kept journal is the single most powerful protection a New York notary has. Because all notaries must keep a journal of every act for ten years, a complete entry, date, time, act type, the document, the identification relied on, and the signer's information, becomes contemporaneous evidence that the notary followed proper procedure. In a later civil suit or disciplinary hearing, that record can be the difference between a sustained claim and a defensible one. The absence of a journal entry, by contrast, leaves the notary with nothing but memory to rebut a serious allegation.