In a legal malpractice case involving a major local employer and a local law firm, four judges recused themselves from the case, for a variety of valid and uncontested reasons. The plaintiff now moves to change venue in the case, alleging that the four recusals create an appearance of impropriety, that impunes the reputation of the court. After the motion was filed, this court was assigned the case.

This legal malpractice action arises out of defendant Harris Beach PLLC's ("Defendant" or "Harris Beach") representation of Carestream Health Inc. ("Plaintiff" or "Carestream") in an action in the Delaware Superior Court. The plaintiff in the Delaware action obtained a $15.5 million judgment against Carestream, and an $850,000 sanctions award. Carestream now contends that this judgment and award resulted from Harris Beach's negligent representation. The present malpractice action was filed, by the Plaintiff, in Monroe County in 2011. Carestream is headquartered in Monroe County. Harris Beach's main office is also located in Monroe County. For almost two years, the parties engaged in discovery without court intervention.

When a dispute arose over privilege questions, the parties sought judicial intervention and discovery motions were filed by both sides. The first judge assigned to the case recused himself because of a personal conflict involving his law clerk and personnel at the law firm. A second judge also recused herself, stating that at one time she had been represented by Harris Beach. A third judge informed the parties that she frequently has Harris Beach attorneys appearing before her and her law clerk had been represented by the defendant at one time. She declined to hear the case. A fourth judge, noting that he had numerous Harris Beach attorneys appearing before him, and that he knew the attorneys whose conduct was at issue in the case, likewise declined to take the case.

Based on these four recusals, Carestream moved to change venue. This Court, in a pre-motion argument, informed that parties that there was no basis for recusal under the Judiciary Law and assured both parties that the Court was confident that it could be fair and impartial. Carestream's counsel argues that a change of venue is required to "permit assignment of the case to a Justice without any relationship to Harris Beach." Carestream seeks to transfer the venue to New York County to remove the "appearance of impropriety."

Harris Beach argues that the current venue is appropriate and that there is no evidence that by continuing venue in this district Carestream will be denied a fair trial. Initially, Harris Beach argues that Carestream, by selecting Monroe County as the venue for the civil action, has waived its right to seek a change. The Court declines to credit that argument: Carestream was not precluded from seeking to change the venue simply because it has first elected this venue. Kenford Co. v. County of Erie, 38 AD2d 781 (4th Dept. 1972).^[FN1]

The parties agree that the decision in this application hinges on CPLR § 510 (2) which permits a change of venue if a court concludes that an "impartial trial cannot be had." Importantly, the phrase used in the CPLR before a change in venue is appropriate is a broad and demanding command: an "impartial trial cannot be had." CPLR § 510 (2) (emphasis added). In utilizing this simple command, the legislature put a high burden on any party seeking to change venue in a civil case. The mere fact that an "impartial trial" might be "difficult to attain" or "might not occur" is insufficient to meet the burden of proof to change venue under CPLR §510 (2). In short, "might" or "maybe" is not sufficient to alter the litigant's choice of proper venue in New York.^[FN2]

The New York courts, reflecting the legislature's broad command, have required strict compliance with the "cannot be had" requirement in the language of CPLR § 510 (2). There must be a "strong possibility" that an impartial trial cannot be had. Gonzalez v L'Oreal USA, Inc., 92 AD3d 1158, 1160 (3rd Dept. 2012) (moving party was required to establish a "strong possibility" that an impartial trial cannot be had in Schoharie County); Pruitt v. Patsalos, 96 AD3d 924 (2nd Dept. 2012) ("to obtain a change of venue pursuant to CPLR § 510 (2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed"). Mere belief, suspicion or feeling are insufficient grounds to grant a motion to change venue. Cohen v Bernstein, 9 AD3d 573, 574 (3rd Dept. 2004); Fishman v Fishman, 20 AD2d 941 (3rd Dept. 1964); Matter of Michiel, 48 AD3d 687 (2nd Dept. 2008) (while the movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained, the petitioner failed to meet his burden by offering only conclusory allegations, beliefs, suspicions and feelings of possible bias or the appearance of impropriety). Finally, the courts have uniformly held that the mere fact that a litigant may be of "some prominence" or holds an "official position" will not justify an inference that an impartial trial cannot be held in that county. In short, suspicion of impartiality is not enough to compel a change; "admissible factual evidence" demonstrating a "strong possibility" is required. Ingo v Casey, 175 Misc. 805, 807 (Sup. Ct. Westchester Cty. 1940) aff'd 260 AD1024 (2nd Dept.1940).

Carestream, in its brief to the court, claims that a lesser standard applies. Citing Arkwright v. Steinbugler, 283 AD2d 397 (2nd Dept. 1954), Carestream argues that the standard for changing venue is "at least a possibility" of "prejudice," and if that possibility is established, then a change is required. But, in a careful reading of the differences between "the admissible factual evidence demonstrating a strong possibility" standard, and the "at least a possibility of prejudice" standard, the latter has been applied by the courts only when judges, their families, or their employees are litigants. See e.g., Amann v. Caccese, 223 AD2d 663 (2nd Dept. 1996) (lesser standard invoked because a litigant was a daughter of a resident judge); Rothwax v. Spicehandler, 161 AD2d 184 (1st Dept. 1990) (judge was litigant and case was moved because of "any possible appearance of impropriety"); Burstein v. Greene, 61 AD2d 827 (2nd Dept. 1978) (plaintiff was spouse of Supreme Court Justice). A trial court in the Second Department discussed this distinction between the burden of proof in a typical change of venue case, and the same analysis when an employee of the court or other court personnel are directly involved in a civil matter. In Cohen v Sacchi, 36 Misc 3d 1208 (A) (Sup. Ct. Kings Cty. 2012), the court, in considering the standards for a motion to change venue in a civil case, noted the "rather high evidentiary burden and the focus on partiality," was most often applied in instances in which a litigant has a family or close relationship to the judiciary. Id. When court employees or their families are involved, the court noted that the Second Department case law also looks to "protection of the court from even a possible appearance of impropriety." Id. This court concurs with Carestream's case law and analysis: in any instance in which judges, their employees or their families have direct conflicts, a lesser standard should be applied to motions to change venue to protect the integrity of the courts, and avoid the appearance of impropriety. Arkwright v. Steinbugler, 283 AD2d 397 (2nd Dept. 1954)

However, in this case, none of the factors involved in Arkwright, Rothwax, or Amann exist. This court has no such familial or employment contacts. This court disclosed its knowledge of Harris Beach and its relationships with that firm and none of those relationships require recusal. Neither side has suggested that this court has any appearance of impropriety in its work on this case and neither party has requested recusal. Judiciary Law § 16 Therefore, the "at least a possibility of prejudice" or "the appearance of impropriety" standard, most often utilized in instances involving familial or employment conflicts, is not properly invoked here.^[FN3]

Under the "admissible evidence of a strong possibility" standard, the claim for a change in venue is unproven. At the heart of this application is whether a "strong possibility that an impartial trial cannot be had" exists because four justices in the Seventh Judicial District declined to hear a case involving a prominent Rochester-based law firm. In reviewing these facts, Carestream sees a pattern of Harris Beach's involvement in the judiciary that leads to the conclusion that there is a strong possibility that an impartial trial cannot be held. A more even-handed analysis suggests otherwise.

In regard to each judge who was assigned this case, the motive for declining to hear the case was either a direct conflict - which would invoke the "appearance of impropriety" standard - or a concern that their prior relationships with Harris Beach attorneys, who appear frequently in their courtrooms, might impact their judgment in the case. In this court's view, the overriding concern of these colleagues, in declining to hear this case, was that Carestream obtain a fair trial. Carestream interprets these actions in an upside down fashion. Instead of judges scrupulously seeking to avoid any conflicts and preserve both parties fair trial rights, Carestream sees a pervasive conflict, inherent in the nature of a large law-firm defendant, that permeates the entire judicial ranks in a district, and creates an inevitable prejudice that cannot be cured. This court sees the recusals differently. There is no evidence that these judges, either directly or implicitly, collectively implied that Carestream could never get a fair trial in the Seventh Judicial District because the defendant was a large and well-known law firm. Carestream's conclusion is purely speculative and falls within the category of category of "conclusory allegations, beliefs, suspicions and feelings of possible bias" that the New York courts have refused to consider in permitting changes of venue. Carestream's contention clearly fails to meet the "admissible evidence of a strong possibility" that the New York courts have insisted be present before a change of venue is ratified under CPLR § 510 (2). The broad and sweeping interpretation advanced by Carestream suggests that whenever a legal malpractice claim is heard in the home district of a large law firm, and judges, seeking to vouchsafe the integrity of the judicial system, decline to oversee the case, an impermissible taint against the entire judicial system in that district arises. In this court's view, the suggestion advanced by Carestream would, for example, require that if several judges in Manhattan declined to hear a legal malpractice action [*2]against a Manhattan-based firm, then a plaintiff could seek a change of venue even if the judge eventually assigned to the case assured all parties of his or her impartiality.^[FN4]

What Carestream seems to argue is that the careful actions of four judges, who wanted to assure the parties of a fair trial, and thus declined to hear a case, create a presumption that a fair trial in this civil action is impossible in this venue. This court declines to credit that presumption. The court declines to create any such presumption of partiality, and having reviewed cases introduced by both sides, can find no such sweeping presumption in the compendium of New York law. Not being able to find it in prior precedents, and this court will not create it.Carestream offers other arguments in support of its proposed change of venue under CPLR 510(2), but none rises to the level of showing that a strong possibility exists that an impartial trial cannot be had. Carestream suggests that because of the size of Harris Beach and its multi-county practice, the same "appearance of impropriety" problem will occur if this case is assigned to any other county in the eight-county Seventh Judicial District. There is no evidence in an admissible form to support this speculation and the court declines to credit it.

Carestream also advances a suggestion that "confidential details about this case and local witnesses will be fodder for gossip in the courthouse and beyond." This wild speculation about the lack of professionalism of the attorneys and court staff in this district — while perhaps extant elsewhere in New York - is misplaced and there is no evidence that it does exist or would occur in this case. This court also notes that this case will, by acknowledgment of both sides at oral argument, be a jury trial. The factual findings related to the legal malpractice will likely be made by a jury, not the court. All of the procedural rulings - including this decision and any eventual decision on the disclosure of privileged records - will be reviewable on appeal by both sides.

Finally, Carestream raises a possibility that a referee or special master may be required in this case and that appointment by the court might trigger the "appearance of impropriety" concern raised earlier. This court is confident that a referee or special master, acceptable to both parties, can be found in either the Seventh Judicial District or adjacent districts.

Carestream also asks this Court to grant a change in venue under the "interests of justice" analysis under CPLR 510(3). Relief under this aspect of the venue rules is also discretionary with the Court. Leopold v. Goldstein, 283 AD2d 319 (1st Dep't 2001). This Court finds little guidance [*3]in how the "interests of justice" standard under CPLR 510(3) differs from the "impartial trial cannot be had" standard under CPLR 510(2). The case law under CPLR 501(3) provides minimal guidance. In considering the interest of justice, the Court can consider, among other factors, court congestion but most of the focus is on the convenience of non-party witnesses. Stratton v. Dueppengiesser, 281 AD2d 991(4th Dep't 2001); Callahan v. Cortland Memorial Hospital, 127 AD2d 921 (3d Dep't 1987).^[FN5] To establish inconvenience of witnesses, the courts have made it incumbent that the moving party must provide (1) the identity of the proposed witnesses, (2) the manner in which they will be inconvenienced by a trial in the county where the action was commenced, (3) that the witness has been contacted and is available and willing to testify for defendant, (4) the nature of the anticipated testimony, and (5) the manner in which the proposed testimony is material to issues in the case. Leopold v Goldstein, 283 AD2d 319

The plaintiff's motion for a change in venue is denied. The court will reschedule the return date for the motions related to discovery to a later date.