{"@context":"https://schema.org","@type":"DigitalDocument","altText":"PETITION","alternateName":"NYSCEF-case-20f2fbf9d925-000001.pdf","caption":"NYSCEF document #1 | Filed: 2026-10-07 | Filed by: MILTENBERG, ANDREW T Filed:  Received: | Docket status: Processed Confirmation Notice | Case: Lopes v. Hochul (Cornell 7 Lopes Against Special Prosecutor Assignment Tish James) | Source: NYSCEF","contentUrl":"https://lucycraig.blog/media/441/raw","datePublished":"2026-10-16T19:59:12+00:00","description":"NYSCEF document #1 | Filed: 2026-10-07 | Filed by: MILTENBERG, ANDREW T Filed:  Received: | Docket status: Processed Confirmation Notice | Case: Lopes v. Hochul (Cornell 7 Lopes Against Special Prosecutor Assignment Tish James) | Source: NYSCEF","encodingFormat":"application/pdf","identifier":"441","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/441/index.json","markdown":"https://lucycraig.blog/media/441/index.md"},"name":"PETITION","ocrStatus":"ready","ocrText":"--- Page 1 ---\n1 \n \nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \n \nIn the Matter of the Application of  \nGILLIO LOPES, \n \n                                                      Petitioner, \n \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n \n \n                                     -against- \n \n \n \n \n \n \n \n \n \nKATHLEEN (\u201cKATHY\u201d) M. HOCHUL, in \nher official capacity as Governor of the State \nof New York, and LETITIA JAMES, in her \nofficial capacity as Attorney General of the \nState of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.: \n \n \n \n            VERIFIED PETITION \n \n \nPetitioner Gillio Lopes, by and through his attorneys Nesenoff & Miltenberg, LLP, as and \nfor his Verified Petition against Respondent Governor Kathleen (\u201cKathy\u201d) M. Hochul, and \nAttorney General Letitia James, respectfully alleges as follows:  \nINTRODUCTION \n1. \nThis is a special proceeding brought against New York Governor Kathleen \n(\u201cKathy\u201d) M. Hochul (\u201cGovernor Hochul\u201d) pursuant to Article 78 of the Civil Practice Law and \nRules (\u201cCPLR\u201d), to void her appointment of New York Attorney General Letitia James to serve \nas Special Prosecutor in the case of Cornell male students alleged to have engaged in, or had \nknowledge of, the sexual assault of a female student. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n1 of 16\n\n--- Page 2 ---\n2 \n \n2. \nOn September 16, 2026, a former female student of Cornell University (\u201cJane \nDoe\u201d) initiated a complaint in the Supreme Court, County of New York, Civil Action No. \n161704/2026, titled Jane Doe v. Cornell University, Inc., et al., against multiple parties including \nthe Petitioner (the \u201cCivil Case\u201d).  \n3. \nIn the complaint, Jane Doe alleges that on October 19-20, 2024, she was coerced to \nconsume alcohol and drugs and repeatedly sexually assaulted throughout the evening and early \nmorning hours by seven different students, at a fraternity house on Cornell\u2019s campus. \n4. \nThe Civil Case gained immediate and widespread national attention, resulting in \ndaily reporting in the media, commentary on social media, and outrage by the public over how \nCornell, the University Police Department, and the Tompkins County District Attorney handled \nthe allegations when first brought to their attention in the fall of 2024. \n5. \nIn response to this growing and immense pressure and scrutiny, on October 1, 2026, \nGovernor Hochul appointed New York Attorney General Letitia James (\u201cAttorney General \nJames\u201d) to serve as Special Prosecutor to investigate the allegations and prosecute any offenses \narising from such investigation. \n6. \nThe appointment of Attorney General James is improper as Attorney General James \nhas unequivocally demonstrated a bias and presumption of guilt against the defendants named in \nthe Civil Case, including Petitioner.  \n7. \nSpecifically, three days prior to her appointment as Special Prosecutor, on \nSeptember 28, 2026 at 6:13pm, Attorney General James posted to the Attorney General\u2019s official \nsocial media platform X\u2019s account: \u201cWhat this young woman has been forced to endure is horrific \nand unacceptable. I\u2019m holding her in my heart and in my prayers. To her, and to all survivors: \nyou\u2019re not alone. We stand with you.\u201d \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n2 of 16\n\n--- Page 3 ---\n3 \n \n8. \nThrough this official public statement, Attorney General James has made clear that \nshe has formed an opinion about the case, that she believes the allegations made by Jane Doe, and \nthat she has already reached the conclusion that Petitioner and the other named Defendants are \nguilty.  \n9. \nAccordingly, because Attorney General James is not and cannot remain neutral in \ninvestigating this matter, there is a substantial likelihood of prejudice to Petitioner if Attorney \nGeneral James is permitted to remain on as Special Prosecutor. \n10. \nFor the reasons that follow, Governor Hochul\u2019s appointment of Attorney General \nJames as Special Prosecutor in the investigation of the Cornell matter must be voided.  \nTHE PARTIES \n11. \nPetitioner Gillio Lopes is a natural person and a resident of a State of other than \nNew York.  \n12. \nRespondent Kathleen Hochul is the Governor of the State of New York, and a \nnatural person and resident of the State of New York. \n13. \nRespondent Letitia James is the Attorney General of the State of New York, and a \nnatural person and resident of the State of New York. \nJURISDICTION AND VENUE \n14. \nThis Court has jurisdiction pursuant to CPLR \u00a7\u00a7 7801 et seq. to review whether a \nbody or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction.  \n15. \nVenue is proper pursuant to CPLR \u00a7\u00a7 7804 and 506(b) because the actions of the \nRespondent challenged here occurred within this judicial district and the Respondent\u2019s principal \nplace of business is within this judicial district.  \n \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n3 of 16\n\n--- Page 4 ---\n4 \n \nFACTUAL ALLEGATIONS COMMON TO ALL CLAIMS \n16. \nOn September 16, 2026, a former female student of Cornell University Jane Doe \ninitiated a complaint in the Supreme Court, County of New York, against the Petitioner, six other \nmale Cornell students or former students, Cornell University, the male student\u2019s fraternity, Doe\u2019s \nsorority, and a bar and nightclub in Ithaca, New York. Exhibit 1.  \n17. \nIn the complaint, Jane Doe alleges that on October 19-20, 2024, she was coerced to \nconsume alcohol and drugs and repeatedly sexually assaulted throughout the evening and early \nmorning hours by seven different students, at a fraternity house on Cornell\u2019s campus, while she \nwas incapacitated. \n18. \nOn or about November 8, 2024, Doe reported the incident to the Cornell University \nPolice Department. No criminal charges were pursued at that time.  \n19. \nOn or about January 14, 2025, Cornell initiated a Title IX investigation arising from \nDoe\u2019s complaint.  \n20. \nCornell thereafter investigated the matter, from approximately January 2025 \nthrough May of 2025, concluding with a hearing that spanned twelve and a half days.  \n21. \nFollowing the hearing, the student respondents were found responsible for at least \none violation of Cornell\u2019s conduct policies and were assigned sanctions ranging from probationary \nperiods and campus bans up through permanent expulsions.  \n22. \nMore than a year later, on September 16, 2026, Plaintiff commenced the Civil Case, \nwhich includes claims against Petitioner, for sexual assault and sexual battery. \n23. \nImmediately following the filing of Doe\u2019s complaint, the Civil Case began to gain \nwidespread national attention and interest, resulting in daily reporting in the media, commentary \nacross various social media platforms, and outrage by the public over how Cornell, the University \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n4 of 16\n\n--- Page 5 ---\n5 \n \nPolice Department, and the Tompkins County District Attorney handled the allegations when first \nbrought to their attention in the fall of 2024. Exhibit 2.  \n24. \nQuestions emerged about the University Police Department and District Attorney\u2019s \nhandling of Doe\u2019s claims back in the fall of 2024, eventually drawing the attention of the Governor \nof New York.  \n25. \nOn or about September 28, 2026, Tompkins County District Attorney Matthew Van \nHouten indicated that his office would be reopening the case involving Doe\u2019s allegations and \nwould bring the matter to a grand jury to determine if charges are warranted.  \n26. \nVan Houten noted that the allegations brought in the Civil Case however, were \nsignificantly different than what Doe had initially reported to police in 2024. Exhibit 3.  \n27. \nFollowing Van Houten\u2019s announcement, on October 1, 2026, Governor Hochul \nissued a statement in which she expressed that the initial decision by Tompkins County District \nAttorney Matthew Van Houten not to prosecute the case and questions surrounding the Cornell \nUniversity Police Department\u2019s actions have \u201cundercut [her] faith, and the public\u2019s faith, in the \ndistrict attorney\u2019s ability to effectively investigate and prosecute the case at this time.\u201d \n28. \nThus, in response to this growing and immense pressure and scrutiny, Governor \nHochul announced that she was issuing an Executive Order appointing New York Attorney \nGeneral Letitia James (\u201cAttorney General James\u201d) to serve as special prosecutor to \u201cinvestigate \nthis incident and, if warranted, prosecute any offenses arising from that investigation and present \nevidence to a grand jury.\u201d Exhibit 4.  \n29. \nPer the Executive Order, Governor Hochul assigned the Special Prosecutor \u201cthe \npowers and duties specified in subdivision 2 of section 63 of the Executive Law\u2026\u201d and noted the \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n5 of 16\n\n--- Page 6 ---\n6 \n \n\u201cSpecial Prosecutor\u2019s jurisdiction will displace and supersede the jurisdiction of the Tompkins \nCounty District Attorney\u2026\u201d   Exhibit 5.  \n30. \nThe Executive Order further indicated that the Special Prosecutor \u201cshall conduct a \nfull, reasoned, and independent investigation including, but not limited to, gathering and analyzing \nevidence, conducting witness interviews, and reviewing investigative reports, scientific reports, \nand audio and video recordings\u2026\u201d Exhibit 5.  \n31. \nHowever, the October 1st appointment of Attorney General James was highly \nimproper as Attorney General James had previously, on September 28th, unequivocally \ndemonstrated a bias and presumption of guilt against the defendants named in the Civil Case, \nincluding Petitioner.  \n32. \nSpecifically, on September 28, 2026 at 6:13pm, Attorney General James posted to \nthe Attorney General\u2019s official social media platform X\u2019s account: \u201cWhat this young woman has \nbeen forced to endure is horrific and unacceptable. I\u2019m holding her in my heart and in my prayers. \nTo her, and to all survivors: you\u2019re not alone. We stand with you.\u201d Exhibit 6.  \n33. \nThrough this public statement, Attorney General James has made clear that she has \nalready: (i) formed an opinion about the case, (ii) that she believes the allegations made by Jane \nDoe against Petitioner and others, and considers Doe to be a victim; and (iii) she has formulated \nopinions about Petitioner\u2019s and the other defendants\u2019 guilt, before she has even begun the task of \ninvestigating the incident.  \n34. \nHer own words indisputably establish that Attorney General James is not and \ncannot remain neutral in investigating this matter and determining whether to prosecute. Allowing \nher to remain in the role as Special Prosecutor will result in substantial prejudice to Petitioner, as \nwell as the other named defendants. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n6 of 16\n\n--- Page 7 ---\n7 \n \n35. \nThus, pursuant to CPLR \u00a7 7803(2), Governor Hochul\u2019s appointment of Attorney \nGeneral James as Special Prosecutor in the investigation of the Cornell matter must be voided.  \nARGUMENT \nI.  \nThe Governor\u2019s Designation of Attorney General James as Special Prosecutor \n \nWarrants Prohibition Under CPLR 7803(2). \n \n36. \nPetitioner seeks review of Respondent\u2019s October 1, 2026 designation of Attorney \nGeneral Letitia James as Special Prosecutor to investigate and, if warranted, prosecute the \nallegations underlying the Civil Case. Executive Order No. 64 invokes Executive Law \u00a7 63(2) and \nsupersedes the Tompkins County District Attorney with respect to that matter. Petitioner challenges \nthe designation insofar as it places investigative and prosecutorial discretion in the hands of an \nofficial who has already publicly endorsed Plaintiff Jane Doe\u2019s account. Exhibits 5, 6. \n37. \nExecutive Law \u00a7 63(2) authorizes the Governor to require the Attorney General to \nexercise prosecutorial powers otherwise belonging to a district attorney. Petitioner acknowledges \nthat Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223\u2013226 (1997), recognizes broad superseder \nauthority and generally limits judicial review to whether constitutional or statutory authority exists, \nrather than how lawful discretion is exercised. Petitioner does not challenge the Governor\u2019s general \npower to supersede the Tompkins County District Attorney. \n38. \nPetitioner instead challenges Attorney General James\u2019s qualification to exercise \nthat authority personally in this matter, based upon her public statement concerning the very \nallegations she was subsequently assigned to investigate. Petitioner submits that the prosecutorial \ndisqualification principles discussed below impose a limitation upon her participation \nnotwithstanding the Governor\u2019s general superseder authority. Petitioner recognizes, however, that \nwhether this asserted limitation supports relief under CPLR 7803(2) before prosecution presents a \nthreshold question distinct from the merits of the disqualification claim. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n7 of 16\n\n--- Page 8 ---\n8 \n \n39. \nNew York imposes an increased standard for judicial disqualification of a public \nprosecutor. Ordinarily, removal requires actual prejudice arising from a demonstrated conflict of \ninterest, or a substantial risk that an attorney will misuse confidences. People v. Adams, 20 N.Y.3d \n608, 612 (2013); Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). The standard refers to \nthe \u201copportunity for abuse of confidences entrusted to [an] attorney.\u201d People v. Shinkle, 51 N.Y.2d \n417, 420 (1980). In general, \u201c[t]he objector should demonstrate actual prejudice or so substantial \na risk thereof as could not be ignored.\u201d Schumer, 60 N.Y.2d at 55. \n40. \nThere is a narrow exception in which an exceptionally serious appearance of \nimpropriety warrants disqualification, including where the record objectively calls into question \nwhether prosecutorial discretion is being exercised evenhandedly and on legitimate grounds. See \nAdams, 20 N.Y.3d at 612\u2013613. \n41. \nIndeed, in rare circumstances, an exceptionally serious appearance of impropriety \nmay warrant disqualification. Adams, 20 N.Y.3d at 612\u201314. That inquiry includes whether the \nrecord supplies an objective basis to question whether prosecutorial discretion is being exercised \nevenhandedly, according to the merits and legitimate prosecutorial considerations. Id. at 613. \nAlthough Adams involved evidence of disparate treatment arising from the complainant\u2019s position \nas a sitting judge, Petitioner submits that its narrow principle should inform the Court\u2019s \nconsideration of the circumstances presented here.  \n42. \nProhibition is an extraordinary remedy and does not lie merely to correct an alleged \nerror in the exercise of lawful discretion. The court in Matter of Schumer v. Holtzman, 60 N.Y.2d \n46, 53\u201356 (1983), invalidated a district attorney\u2019s unauthorized delegation of independent \nprosecutorial authority before prosecution.  \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n8 of 16\n\n--- Page 9 ---\n9 \n \n43. \nSchumer therefore distinguishes a defect in the grant of prosecutorial authority from \nan insufficiently developed challenge to the prosecutor\u2019s personal qualification. Petitioner submits \nthat the public statement at issue here presents a concrete qualification question, while recognizing \nthat Schumer\u2019s adverse holding requires the Court separately to determine whether that question is \npresently justiciable. \n44. \nPetitioner submits that the wording of Attorney General James\u2019s post on social \nmedia communicated acceptance of Doe\u2019s account. By describing what Doe \u201chas been forced to \nendure\u201d and identifying her with \u201csurvivors,\u201d Attorney General James publicly characterized the \nalleged experience as an event that had occurred, before she was entrusted with the reopened \ncriminal investigation. Exhibit 6. \n45. \nWhile Attorney General James\u2019s statement does not expressly declare Petitioner \nguilty, its significance is the apparent credibility judgment it communicates concerning the \ncomplainant whose allegations Attorney General James was subsequently assigned to investigate. \n46. \nAttorney General James\u2019s responsibilities under the Executive Order include \nevaluating those allegations, considering contradictory or exculpatory evidence, and determining \nwhether criminal charges against individuals identified in the Civil Case, including Petitioner, are \nwarranted. \n47. \nPetitioner contends that publicly endorsing the complainant\u2019s account before \nundertaking those responsibilities creates an objective concern that subsequent decisions may be \ninfluenced by the position Attorney General James has already expressed. The Court should \nconsider whether that concern, in the context of the appointment and the record as a whole, \namounts to a sufficiently substantial risk of prejudice to warrant limiting her participation. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n9 of 16\n\n--- Page 10 ---\n10 \n \n48. \nAttorney General James\u2019s October 1 statement that her office would conduct the \ninvestigation fully and fairly, guided by the facts and the law, must be considered alongside her \nearlier statement in evaluating whether the record supports the asserted risk of prejudgment... \nPetitioner submits that the later assurance should be considered together with the earlier \nendorsement and the nature of the authority conferred upon her. Exhibit 7.  \n49. \nTherefore, the Court should assess whether the record supports a sufficiently \nserious risk of prejudice to justify limiting her participation. Exhibit 8.  \n50. \nWhile in Matter of Abelove v. Cuomo, 57 Misc. 3d 668, 676\u2013677 (Sup. Ct. Albany \nCounty 2017), the court denied prohibition where the Attorney General was performing a purely \ninvestigative executive function, no prosecution was pending, and prosecutorial qualification \ncould be challenged if charges were brought. Petitioner seeks review of Attorney General James\u2019s \npersonal qualification under the designation, rather than review of an individual investigative \ndecision.  \n51. \nNevertheless, Petitioner recognizes that this distinction alone does not establish \nentitlement to prohibition: the Court must determine whether the challenged conduct involves \npresent or threatened quasi-judicial action, whether the asserted disqualification constitutes a legal \nrestriction on authority, and whether an adequate alternative remedy exists. \nII. \nAlternatively, Petitioner Seeks Review Under CPLR 7803(3), To the Extent Such \nReview Is Available.  \n \n52. \nAlternatively, and subject to the limitations on review recognized in Johnson, \nPetitioner seeks review under CPLR 7803(3) on the grounds that the challenged designation was \naffected by an error of law or constituted an abuse of discretion.  \n53. \nPetitioner does not contend that the ordinary arbitrary-and-capricious standard \nindependently establishes reviewability of the Governor\u2019s superseder decision. If the Court \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n10 of 16\n\n--- Page 11 ---\n11 \n \ndetermines that review under CPLR 7803(3) is available, Petitioner relies upon Matter of Pell v. \nBoard of Education, 34 N.Y.2d 222, 231 (1974), in support of the alternative claim that the \nchallenged determination lacks a rational basis in the circumstances alleged. \n54. \nPetitioner submits that entrusting the reopened investigation to an official whose \nprior public statement demonstrate an objective basis to question Attorney General James\u2019s ability \nto serve in a neutral manner, is in direct conflict with Respondent\u2019s stated purpose of restoring \nconfidence in the investigation. \n55. \nAccordingly, to the extent review under CPLR 7803(3) is available, Petitioner \nsubmits that the designation should be annulled or modified insofar as it permits Attorney General \nJames personally to direct the investigation and any resulting prosecution concerning Petitioner. \nIII. \nPetitioner Has a Direct Interest in the Challenged Designation and Seeks Protection \nFrom a Specific Risk of Prejudice. \n \n56. \nPetitioner is an individual defendant named in the Civil Case whose alleged conduct \nfalls within the subject matter of the investigation authorized by Executive Order No. 64. The \ndesignation therefore directly concerns the exercise of investigative and prosecutorial authority \nover allegations involving Petitioner. \n57. \nThe authority conferred by the Executive Order encompasses consequential \ndecisions concerning the direction of the investigation, the evidence pursued, the assessment of \nwitnesses, the presentation of evidence to a grand jury, and whether criminal charges should be \nbrought. Petitioner\u2019s claimed harm concerns the risk that those decisions will be influenced by \nAttorney General James\u2019s prior public endorsement of Doe\u2019s account. \n58. \nThat concern extends beyond the ultimate determination of guilt or innocence. \nInvestigative choices shape the record upon which subsequent decisions are made. Decisions about \nwhich witnesses to interview, which inconsistencies to examine, and which evidence to pursue \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n11 of 16\n\n--- Page 12 ---\n12 \n \nmay affect the factual basis for a grand jury presentation or charging determination. Petitioner \nseeks relief before those discretionary decisions are made under the challenged designation. \n59. \nPrompt resolution would serve the interest in determining whether the official \ndirecting the matter may lawfully continue in that role. Matter of Working Families Party v. Fisher, \n23 N.Y.3d 539, 544\u2013547 (2014), recognizes the value of resolving prosecutorial appointment \nquestions promptly. That case, however, concerned a judicial appointment under County Law \u00a7 \n701 following a district attorney\u2019s request for his own disqualification. Petitioner invokes its \nreasoning concerning prompt resolution, while recognizing that it does not independently establish \nthe availability of pre-prosecution review in this proceeding. Petitioner accordingly requests that \nthe Court determine whether the circumstances established by the record satisfy the demanding \nstandard for relief before Attorney General James exercises further investigative or prosecutorial \ndiscretion concerning Petitioner. \nIV.  \nCPLR 7806 Authorizes the Court to Annul or Modify a Challenged Determination. \n \n60. \nIf Petitioner establishes entitlement to relief under CPLR 7803, CPLR 7806 \nauthorizes an appropriate judgment, including annulment or modification of a reviewable \ndetermination and an order directing or prohibiting specified action by Respondent. \n61. \nUpon a finding that the challenged designation is unlawful or constitutes an \narbitrary and capricious exercise of discretion, Petitioner requests a judgment annulling Executive \nOrder No. 64 insofar as it authorizes Attorney General James personally to direct the investigation \nand any resulting prosecution of Petitioner. \n62. \nAlternatively, Petitioner requests modification of the determination to limit \nAttorney General James\u2019s personal participation, supervision, and control to the extent warranted \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n12 of 16\n\n--- Page 13 ---\n13 \n \nby the Court\u2019s findings, together with remittal to Governor Hochul for reconsideration consistent \nwith the judgment and applicable law. \n63. \nThe requested relief should address the prejudice established by the record while \npermitting a lawful investigation and any warranted prosecution to proceed. \nV. \nHarm to Petitioner  \n64. \nPetitioner is an individual named in the Civil Case whose alleged conduct falls \nwithin the investigation authorized by Executive Order No. 64.  \n65. \nAttorney General James\u2019s authority encompasses the assessment of witness \ncredibility, the pursuit of evidence, grand jury presentations, and charging decisions concerning \nPetitioner.  \n66. \nPetitioner contends that Attorney General James\u2019s prior public endorsement of \nDoe\u2019s account creates a substantial risk that these decisions will be influenced by prejudgment.  \n67. \nMoreover, later review may not fully remedy the consequences of investigative \nchoices and charging decisions already made under the challenged designation.  \n68. \nPetitioner therefore seeks prompt review before Attorney General James exercises \nfurther investigative or prosecutorial discretion concerning him. \nAS AND FOR A FIRST CAUSE OF ACTION \nJUDGMENT PURSUANT TO CPLR \u00a7 7803(2) \n \n69. \nPetitioner repeats and re-alleges each and every allegation above as if fully set forth \nherein. \n70. \nIn appointing Attorney General James to serve as Special Prosecutor in the criminal \ninvestigation of the Cornell matter, Respondent has proceeded and is proceeding in excess of her \njurisdiction, in violation of CPLR 7803(2).  \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n13 of 16\n\n--- Page 14 ---\n14 \n \n71. \nIn appointing Attorney General James to serve as Special Prosecutor in the criminal \ninvestigation of the Cornell matter, Respondent has acted in an arbitrary and capricious manner, \nor committed an abuse of discretion,  in violation of CPLR 7803(3).  \n72. \nOn October 1, 2026, Respondent issued Executive Order No. 64, directing Attorney \nGeneral James to investigate the allegations underlying the Civil Case and, if warranted, present \nevidence to a grand jury and prosecute offenses arising from that investigation. \n73. \nPetitioner is an individual defendant named in the Civil Case whose alleged conduct \nfalls within the subject matter of the investigation authorized by Executive Order No. 64. \n74. \nBefore Respondent issued the Executive Order, Attorney General James publicly \naddressed Doe\u2019s allegations in the September 28, 2026 statement quoted above. Petitioner alleges \nthat the statement endorsed Doe\u2019s account before Attorney General James was entrusted with the \nreopened criminal investigation. \n75. \nRespondent thereafter designated Attorney General James to exercise investigative \nand prosecutorial discretion over the same allegations, including the assessment of Doe\u2019s \ncredibility and the determination whether charges against Petitioner are warranted. \n76. \nPetitioner alleges that Attorney General James\u2019s public endorsement of Doe\u2019s \naccount creates a substantial risk that her assessment of the evidence and exercise of discretion \nwill be influenced by the position she publicly expressed before receiving the designation. \n77. \nPetitioner alleges that vesting control of the reopened matter in an official who had \npublicly endorsed the complainant\u2019s account is inconsistent with the stated purpose of conducting \na fair and full investigation.  \n78. \nFor these reasons, Petitioner alleges that Respondent\u2019s October 1, 2026 \ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n14 of 16\n\n--- Page 15 ---\nNES\nF\nT\nAndrew\nerg,\nresulting prosecution of Petitioner, is in excess of her jurisdiction within the meaning of CPLR\n7803(2).\n79. For these reasons, Petitioner also alleges that Respondent's October l, 2026\ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any\nresulting prosecution ofPetitioner, is arbitrary and capricious and constitutes an abuse ofdiscretion\nwithin the meaning of CPLR 7803(3).\n80. 'Pursuant to CPLR 7806, Petitioner requests a judgment annulling the challenged\ndetermination to that extent or, alternatively, modiffing it to address Attorney General James's\npersonal participation and control, and remitting the matter to Respondent for reconsideration\nconsistent with the Court's judgment.\n81. Petitioner has not a made a prior application for the relief requested herein.\n\\ilHEREFOR3, Petitioner respectfully requests that the Court enter a judgment and order\ndeclaring:\na) Respondent Governor Hochul's appointment of Attorney General James as Special\nProsecutor in the investigation of the Cornell matter is voided; and\nb) Respondent Governor Hochul shall appoint a Special Prosecutor who is free from actual\nor perceived conflicts of interest or bias against Petitioner and the other individually\nnamed Defendants in the civil action\nDated:New York, New York\nOctober 7,2026\nRespectfully Submitted,\n&\nBy:\nT. Milten\nStuart Bernstein, Esq.\nTara J. Davis, Esq.\nt\n15\nEsq.\nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n15 of 16\n\n--- Page 16 ---\nOc\nber,\ne\n363 Seventh Avenue, X'ifth Floor\nNew York, New York 10001\nQLz) 736-4s00\namiltenberg@nmllplaw.com\nsb ernstein@nmllplaw. com\ntdavis@nmllplaw.com\nAtto rney s for P et\u00edt\u00edo ner\nVERIF'ICATION\nsrATE OF NEWYORK )\n) ss:\ncouNTY oF NEWYORK )\nANDREW MILTENBERG, being duly sworn, deposes and says:\nI am counsel to the Petitioner in this matter. I have read the annexed Verified Petition,\nknow the contents thereof and the same is true to my knowledge, except as to matters alleged\nupon information and belief and as to those matters, I believe them to be true.\nSigned under the pains and penalties of perjury, on this 7\u00fa day of\n2026\ntenberg, Esq\nt6\nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n16 of 16","text":"--- Page 1 ---\n1 \n \nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \n \nIn the Matter of the Application of  \nGILLIO LOPES, \n \n                                                      Petitioner, \n \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n \n \n                                     -against- \n \n \n \n \n \n \n \n \n \nKATHLEEN (\u201cKATHY\u201d) M. HOCHUL, in \nher official capacity as Governor of the State \nof New York, and LETITIA JAMES, in her \nofficial capacity as Attorney General of the \nState of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.: \n \n \n \n            VERIFIED PETITION \n \n \nPetitioner Gillio Lopes, by and through his attorneys Nesenoff & Miltenberg, LLP, as and \nfor his Verified Petition against Respondent Governor Kathleen (\u201cKathy\u201d) M. Hochul, and \nAttorney General Letitia James, respectfully alleges as follows:  \nINTRODUCTION \n1. \nThis is a special proceeding brought against New York Governor Kathleen \n(\u201cKathy\u201d) M. Hochul (\u201cGovernor Hochul\u201d) pursuant to Article 78 of the Civil Practice Law and \nRules (\u201cCPLR\u201d), to void her appointment of New York Attorney General Letitia James to serve \nas Special Prosecutor in the case of Cornell male students alleged to have engaged in, or had \nknowledge of, the sexual assault of a female student. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n1 of 16\n\n--- Page 2 ---\n2 \n \n2. \nOn September 16, 2026, a former female student of Cornell University (\u201cJane \nDoe\u201d) initiated a complaint in the Supreme Court, County of New York, Civil Action No. \n161704/2026, titled Jane Doe v. Cornell University, Inc., et al., against multiple parties including \nthe Petitioner (the \u201cCivil Case\u201d).  \n3. \nIn the complaint, Jane Doe alleges that on October 19-20, 2024, she was coerced to \nconsume alcohol and drugs and repeatedly sexually assaulted throughout the evening and early \nmorning hours by seven different students, at a fraternity house on Cornell\u2019s campus. \n4. \nThe Civil Case gained immediate and widespread national attention, resulting in \ndaily reporting in the media, commentary on social media, and outrage by the public over how \nCornell, the University Police Department, and the Tompkins County District Attorney handled \nthe allegations when first brought to their attention in the fall of 2024. \n5. \nIn response to this growing and immense pressure and scrutiny, on October 1, 2026, \nGovernor Hochul appointed New York Attorney General Letitia James (\u201cAttorney General \nJames\u201d) to serve as Special Prosecutor to investigate the allegations and prosecute any offenses \narising from such investigation. \n6. \nThe appointment of Attorney General James is improper as Attorney General James \nhas unequivocally demonstrated a bias and presumption of guilt against the defendants named in \nthe Civil Case, including Petitioner.  \n7. \nSpecifically, three days prior to her appointment as Special Prosecutor, on \nSeptember 28, 2026 at 6:13pm, Attorney General James posted to the Attorney General\u2019s official \nsocial media platform X\u2019s account: \u201cWhat this young woman has been forced to endure is horrific \nand unacceptable. I\u2019m holding her in my heart and in my prayers. To her, and to all survivors: \nyou\u2019re not alone. We stand with you.\u201d \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n2 of 16\n\n--- Page 3 ---\n3 \n \n8. \nThrough this official public statement, Attorney General James has made clear that \nshe has formed an opinion about the case, that she believes the allegations made by Jane Doe, and \nthat she has already reached the conclusion that Petitioner and the other named Defendants are \nguilty.  \n9. \nAccordingly, because Attorney General James is not and cannot remain neutral in \ninvestigating this matter, there is a substantial likelihood of prejudice to Petitioner if Attorney \nGeneral James is permitted to remain on as Special Prosecutor. \n10. \nFor the reasons that follow, Governor Hochul\u2019s appointment of Attorney General \nJames as Special Prosecutor in the investigation of the Cornell matter must be voided.  \nTHE PARTIES \n11. \nPetitioner Gillio Lopes is a natural person and a resident of a State of other than \nNew York.  \n12. \nRespondent Kathleen Hochul is the Governor of the State of New York, and a \nnatural person and resident of the State of New York. \n13. \nRespondent Letitia James is the Attorney General of the State of New York, and a \nnatural person and resident of the State of New York. \nJURISDICTION AND VENUE \n14. \nThis Court has jurisdiction pursuant to CPLR \u00a7\u00a7 7801 et seq. to review whether a \nbody or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction.  \n15. \nVenue is proper pursuant to CPLR \u00a7\u00a7 7804 and 506(b) because the actions of the \nRespondent challenged here occurred within this judicial district and the Respondent\u2019s principal \nplace of business is within this judicial district.  \n \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n3 of 16\n\n--- Page 4 ---\n4 \n \nFACTUAL ALLEGATIONS COMMON TO ALL CLAIMS \n16. \nOn September 16, 2026, a former female student of Cornell University Jane Doe \ninitiated a complaint in the Supreme Court, County of New York, against the Petitioner, six other \nmale Cornell students or former students, Cornell University, the male student\u2019s fraternity, Doe\u2019s \nsorority, and a bar and nightclub in Ithaca, New York. Exhibit 1.  \n17. \nIn the complaint, Jane Doe alleges that on October 19-20, 2024, she was coerced to \nconsume alcohol and drugs and repeatedly sexually assaulted throughout the evening and early \nmorning hours by seven different students, at a fraternity house on Cornell\u2019s campus, while she \nwas incapacitated. \n18. \nOn or about November 8, 2024, Doe reported the incident to the Cornell University \nPolice Department. No criminal charges were pursued at that time.  \n19. \nOn or about January 14, 2025, Cornell initiated a Title IX investigation arising from \nDoe\u2019s complaint.  \n20. \nCornell thereafter investigated the matter, from approximately January 2025 \nthrough May of 2025, concluding with a hearing that spanned twelve and a half days.  \n21. \nFollowing the hearing, the student respondents were found responsible for at least \none violation of Cornell\u2019s conduct policies and were assigned sanctions ranging from probationary \nperiods and campus bans up through permanent expulsions.  \n22. \nMore than a year later, on September 16, 2026, Plaintiff commenced the Civil Case, \nwhich includes claims against Petitioner, for sexual assault and sexual battery. \n23. \nImmediately following the filing of Doe\u2019s complaint, the Civil Case began to gain \nwidespread national attention and interest, resulting in daily reporting in the media, commentary \nacross various social media platforms, and outrage by the public over how Cornell, the University \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n4 of 16\n\n--- Page 5 ---\n5 \n \nPolice Department, and the Tompkins County District Attorney handled the allegations when first \nbrought to their attention in the fall of 2024. Exhibit 2.  \n24. \nQuestions emerged about the University Police Department and District Attorney\u2019s \nhandling of Doe\u2019s claims back in the fall of 2024, eventually drawing the attention of the Governor \nof New York.  \n25. \nOn or about September 28, 2026, Tompkins County District Attorney Matthew Van \nHouten indicated that his office would be reopening the case involving Doe\u2019s allegations and \nwould bring the matter to a grand jury to determine if charges are warranted.  \n26. \nVan Houten noted that the allegations brought in the Civil Case however, were \nsignificantly different than what Doe had initially reported to police in 2024. Exhibit 3.  \n27. \nFollowing Van Houten\u2019s announcement, on October 1, 2026, Governor Hochul \nissued a statement in which she expressed that the initial decision by Tompkins County District \nAttorney Matthew Van Houten not to prosecute the case and questions surrounding the Cornell \nUniversity Police Department\u2019s actions have \u201cundercut [her] faith, and the public\u2019s faith, in the \ndistrict attorney\u2019s ability to effectively investigate and prosecute the case at this time.\u201d \n28. \nThus, in response to this growing and immense pressure and scrutiny, Governor \nHochul announced that she was issuing an Executive Order appointing New York Attorney \nGeneral Letitia James (\u201cAttorney General James\u201d) to serve as special prosecutor to \u201cinvestigate \nthis incident and, if warranted, prosecute any offenses arising from that investigation and present \nevidence to a grand jury.\u201d Exhibit 4.  \n29. \nPer the Executive Order, Governor Hochul assigned the Special Prosecutor \u201cthe \npowers and duties specified in subdivision 2 of section 63 of the Executive Law\u2026\u201d and noted the \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n5 of 16\n\n--- Page 6 ---\n6 \n \n\u201cSpecial Prosecutor\u2019s jurisdiction will displace and supersede the jurisdiction of the Tompkins \nCounty District Attorney\u2026\u201d   Exhibit 5.  \n30. \nThe Executive Order further indicated that the Special Prosecutor \u201cshall conduct a \nfull, reasoned, and independent investigation including, but not limited to, gathering and analyzing \nevidence, conducting witness interviews, and reviewing investigative reports, scientific reports, \nand audio and video recordings\u2026\u201d Exhibit 5.  \n31. \nHowever, the October 1st appointment of Attorney General James was highly \nimproper as Attorney General James had previously, on September 28th, unequivocally \ndemonstrated a bias and presumption of guilt against the defendants named in the Civil Case, \nincluding Petitioner.  \n32. \nSpecifically, on September 28, 2026 at 6:13pm, Attorney General James posted to \nthe Attorney General\u2019s official social media platform X\u2019s account: \u201cWhat this young woman has \nbeen forced to endure is horrific and unacceptable. I\u2019m holding her in my heart and in my prayers. \nTo her, and to all survivors: you\u2019re not alone. We stand with you.\u201d Exhibit 6.  \n33. \nThrough this public statement, Attorney General James has made clear that she has \nalready: (i) formed an opinion about the case, (ii) that she believes the allegations made by Jane \nDoe against Petitioner and others, and considers Doe to be a victim; and (iii) she has formulated \nopinions about Petitioner\u2019s and the other defendants\u2019 guilt, before she has even begun the task of \ninvestigating the incident.  \n34. \nHer own words indisputably establish that Attorney General James is not and \ncannot remain neutral in investigating this matter and determining whether to prosecute. Allowing \nher to remain in the role as Special Prosecutor will result in substantial prejudice to Petitioner, as \nwell as the other named defendants. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n6 of 16\n\n--- Page 7 ---\n7 \n \n35. \nThus, pursuant to CPLR \u00a7 7803(2), Governor Hochul\u2019s appointment of Attorney \nGeneral James as Special Prosecutor in the investigation of the Cornell matter must be voided.  \nARGUMENT \nI.  \nThe Governor\u2019s Designation of Attorney General James as Special Prosecutor \n \nWarrants Prohibition Under CPLR 7803(2). \n \n36. \nPetitioner seeks review of Respondent\u2019s October 1, 2026 designation of Attorney \nGeneral Letitia James as Special Prosecutor to investigate and, if warranted, prosecute the \nallegations underlying the Civil Case. Executive Order No. 64 invokes Executive Law \u00a7 63(2) and \nsupersedes the Tompkins County District Attorney with respect to that matter. Petitioner challenges \nthe designation insofar as it places investigative and prosecutorial discretion in the hands of an \nofficial who has already publicly endorsed Plaintiff Jane Doe\u2019s account. Exhibits 5, 6. \n37. \nExecutive Law \u00a7 63(2) authorizes the Governor to require the Attorney General to \nexercise prosecutorial powers otherwise belonging to a district attorney. Petitioner acknowledges \nthat Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223\u2013226 (1997), recognizes broad superseder \nauthority and generally limits judicial review to whether constitutional or statutory authority exists, \nrather than how lawful discretion is exercised. Petitioner does not challenge the Governor\u2019s general \npower to supersede the Tompkins County District Attorney. \n38. \nPetitioner instead challenges Attorney General James\u2019s qualification to exercise \nthat authority personally in this matter, based upon her public statement concerning the very \nallegations she was subsequently assigned to investigate. Petitioner submits that the prosecutorial \ndisqualification principles discussed below impose a limitation upon her participation \nnotwithstanding the Governor\u2019s general superseder authority. Petitioner recognizes, however, that \nwhether this asserted limitation supports relief under CPLR 7803(2) before prosecution presents a \nthreshold question distinct from the merits of the disqualification claim. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n7 of 16\n\n--- Page 8 ---\n8 \n \n39. \nNew York imposes an increased standard for judicial disqualification of a public \nprosecutor. Ordinarily, removal requires actual prejudice arising from a demonstrated conflict of \ninterest, or a substantial risk that an attorney will misuse confidences. People v. Adams, 20 N.Y.3d \n608, 612 (2013); Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). The standard refers to \nthe \u201copportunity for abuse of confidences entrusted to [an] attorney.\u201d People v. Shinkle, 51 N.Y.2d \n417, 420 (1980). In general, \u201c[t]he objector should demonstrate actual prejudice or so substantial \na risk thereof as could not be ignored.\u201d Schumer, 60 N.Y.2d at 55. \n40. \nThere is a narrow exception in which an exceptionally serious appearance of \nimpropriety warrants disqualification, including where the record objectively calls into question \nwhether prosecutorial discretion is being exercised evenhandedly and on legitimate grounds. See \nAdams, 20 N.Y.3d at 612\u2013613. \n41. \nIndeed, in rare circumstances, an exceptionally serious appearance of impropriety \nmay warrant disqualification. Adams, 20 N.Y.3d at 612\u201314. That inquiry includes whether the \nrecord supplies an objective basis to question whether prosecutorial discretion is being exercised \nevenhandedly, according to the merits and legitimate prosecutorial considerations. Id. at 613. \nAlthough Adams involved evidence of disparate treatment arising from the complainant\u2019s position \nas a sitting judge, Petitioner submits that its narrow principle should inform the Court\u2019s \nconsideration of the circumstances presented here.  \n42. \nProhibition is an extraordinary remedy and does not lie merely to correct an alleged \nerror in the exercise of lawful discretion. The court in Matter of Schumer v. Holtzman, 60 N.Y.2d \n46, 53\u201356 (1983), invalidated a district attorney\u2019s unauthorized delegation of independent \nprosecutorial authority before prosecution.  \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n8 of 16\n\n--- Page 9 ---\n9 \n \n43. \nSchumer therefore distinguishes a defect in the grant of prosecutorial authority from \nan insufficiently developed challenge to the prosecutor\u2019s personal qualification. Petitioner submits \nthat the public statement at issue here presents a concrete qualification question, while recognizing \nthat Schumer\u2019s adverse holding requires the Court separately to determine whether that question is \npresently justiciable. \n44. \nPetitioner submits that the wording of Attorney General James\u2019s post on social \nmedia communicated acceptance of Doe\u2019s account. By describing what Doe \u201chas been forced to \nendure\u201d and identifying her with \u201csurvivors,\u201d Attorney General James publicly characterized the \nalleged experience as an event that had occurred, before she was entrusted with the reopened \ncriminal investigation. Exhibit 6. \n45. \nWhile Attorney General James\u2019s statement does not expressly declare Petitioner \nguilty, its significance is the apparent credibility judgment it communicates concerning the \ncomplainant whose allegations Attorney General James was subsequently assigned to investigate. \n46. \nAttorney General James\u2019s responsibilities under the Executive Order include \nevaluating those allegations, considering contradictory or exculpatory evidence, and determining \nwhether criminal charges against individuals identified in the Civil Case, including Petitioner, are \nwarranted. \n47. \nPetitioner contends that publicly endorsing the complainant\u2019s account before \nundertaking those responsibilities creates an objective concern that subsequent decisions may be \ninfluenced by the position Attorney General James has already expressed. The Court should \nconsider whether that concern, in the context of the appointment and the record as a whole, \namounts to a sufficiently substantial risk of prejudice to warrant limiting her participation. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n9 of 16\n\n--- Page 10 ---\n10 \n \n48. \nAttorney General James\u2019s October 1 statement that her office would conduct the \ninvestigation fully and fairly, guided by the facts and the law, must be considered alongside her \nearlier statement in evaluating whether the record supports the asserted risk of prejudgment... \nPetitioner submits that the later assurance should be considered together with the earlier \nendorsement and the nature of the authority conferred upon her. Exhibit 7.  \n49. \nTherefore, the Court should assess whether the record supports a sufficiently \nserious risk of prejudice to justify limiting her participation. Exhibit 8.  \n50. \nWhile in Matter of Abelove v. Cuomo, 57 Misc. 3d 668, 676\u2013677 (Sup. Ct. Albany \nCounty 2017), the court denied prohibition where the Attorney General was performing a purely \ninvestigative executive function, no prosecution was pending, and prosecutorial qualification \ncould be challenged if charges were brought. Petitioner seeks review of Attorney General James\u2019s \npersonal qualification under the designation, rather than review of an individual investigative \ndecision.  \n51. \nNevertheless, Petitioner recognizes that this distinction alone does not establish \nentitlement to prohibition: the Court must determine whether the challenged conduct involves \npresent or threatened quasi-judicial action, whether the asserted disqualification constitutes a legal \nrestriction on authority, and whether an adequate alternative remedy exists. \nII. \nAlternatively, Petitioner Seeks Review Under CPLR 7803(3), To the Extent Such \nReview Is Available.  \n \n52. \nAlternatively, and subject to the limitations on review recognized in Johnson, \nPetitioner seeks review under CPLR 7803(3) on the grounds that the challenged designation was \naffected by an error of law or constituted an abuse of discretion.  \n53. \nPetitioner does not contend that the ordinary arbitrary-and-capricious standard \nindependently establishes reviewability of the Governor\u2019s superseder decision. If the Court \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n10 of 16\n\n--- Page 11 ---\n11 \n \ndetermines that review under CPLR 7803(3) is available, Petitioner relies upon Matter of Pell v. \nBoard of Education, 34 N.Y.2d 222, 231 (1974), in support of the alternative claim that the \nchallenged determination lacks a rational basis in the circumstances alleged. \n54. \nPetitioner submits that entrusting the reopened investigation to an official whose \nprior public statement demonstrate an objective basis to question Attorney General James\u2019s ability \nto serve in a neutral manner, is in direct conflict with Respondent\u2019s stated purpose of restoring \nconfidence in the investigation. \n55. \nAccordingly, to the extent review under CPLR 7803(3) is available, Petitioner \nsubmits that the designation should be annulled or modified insofar as it permits Attorney General \nJames personally to direct the investigation and any resulting prosecution concerning Petitioner. \nIII. \nPetitioner Has a Direct Interest in the Challenged Designation and Seeks Protection \nFrom a Specific Risk of Prejudice. \n \n56. \nPetitioner is an individual defendant named in the Civil Case whose alleged conduct \nfalls within the subject matter of the investigation authorized by Executive Order No. 64. The \ndesignation therefore directly concerns the exercise of investigative and prosecutorial authority \nover allegations involving Petitioner. \n57. \nThe authority conferred by the Executive Order encompasses consequential \ndecisions concerning the direction of the investigation, the evidence pursued, the assessment of \nwitnesses, the presentation of evidence to a grand jury, and whether criminal charges should be \nbrought. Petitioner\u2019s claimed harm concerns the risk that those decisions will be influenced by \nAttorney General James\u2019s prior public endorsement of Doe\u2019s account. \n58. \nThat concern extends beyond the ultimate determination of guilt or innocence. \nInvestigative choices shape the record upon which subsequent decisions are made. Decisions about \nwhich witnesses to interview, which inconsistencies to examine, and which evidence to pursue \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n11 of 16\n\n--- Page 12 ---\n12 \n \nmay affect the factual basis for a grand jury presentation or charging determination. Petitioner \nseeks relief before those discretionary decisions are made under the challenged designation. \n59. \nPrompt resolution would serve the interest in determining whether the official \ndirecting the matter may lawfully continue in that role. Matter of Working Families Party v. Fisher, \n23 N.Y.3d 539, 544\u2013547 (2014), recognizes the value of resolving prosecutorial appointment \nquestions promptly. That case, however, concerned a judicial appointment under County Law \u00a7 \n701 following a district attorney\u2019s request for his own disqualification. Petitioner invokes its \nreasoning concerning prompt resolution, while recognizing that it does not independently establish \nthe availability of pre-prosecution review in this proceeding. Petitioner accordingly requests that \nthe Court determine whether the circumstances established by the record satisfy the demanding \nstandard for relief before Attorney General James exercises further investigative or prosecutorial \ndiscretion concerning Petitioner. \nIV.  \nCPLR 7806 Authorizes the Court to Annul or Modify a Challenged Determination. \n \n60. \nIf Petitioner establishes entitlement to relief under CPLR 7803, CPLR 7806 \nauthorizes an appropriate judgment, including annulment or modification of a reviewable \ndetermination and an order directing or prohibiting specified action by Respondent. \n61. \nUpon a finding that the challenged designation is unlawful or constitutes an \narbitrary and capricious exercise of discretion, Petitioner requests a judgment annulling Executive \nOrder No. 64 insofar as it authorizes Attorney General James personally to direct the investigation \nand any resulting prosecution of Petitioner. \n62. \nAlternatively, Petitioner requests modification of the determination to limit \nAttorney General James\u2019s personal participation, supervision, and control to the extent warranted \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n12 of 16\n\n--- Page 13 ---\n13 \n \nby the Court\u2019s findings, together with remittal to Governor Hochul for reconsideration consistent \nwith the judgment and applicable law. \n63. \nThe requested relief should address the prejudice established by the record while \npermitting a lawful investigation and any warranted prosecution to proceed. \nV. \nHarm to Petitioner  \n64. \nPetitioner is an individual named in the Civil Case whose alleged conduct falls \nwithin the investigation authorized by Executive Order No. 64.  \n65. \nAttorney General James\u2019s authority encompasses the assessment of witness \ncredibility, the pursuit of evidence, grand jury presentations, and charging decisions concerning \nPetitioner.  \n66. \nPetitioner contends that Attorney General James\u2019s prior public endorsement of \nDoe\u2019s account creates a substantial risk that these decisions will be influenced by prejudgment.  \n67. \nMoreover, later review may not fully remedy the consequences of investigative \nchoices and charging decisions already made under the challenged designation.  \n68. \nPetitioner therefore seeks prompt review before Attorney General James exercises \nfurther investigative or prosecutorial discretion concerning him. \nAS AND FOR A FIRST CAUSE OF ACTION \nJUDGMENT PURSUANT TO CPLR \u00a7 7803(2) \n \n69. \nPetitioner repeats and re-alleges each and every allegation above as if fully set forth \nherein. \n70. \nIn appointing Attorney General James to serve as Special Prosecutor in the criminal \ninvestigation of the Cornell matter, Respondent has proceeded and is proceeding in excess of her \njurisdiction, in violation of CPLR 7803(2).  \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n13 of 16\n\n--- Page 14 ---\n14 \n \n71. \nIn appointing Attorney General James to serve as Special Prosecutor in the criminal \ninvestigation of the Cornell matter, Respondent has acted in an arbitrary and capricious manner, \nor committed an abuse of discretion,  in violation of CPLR 7803(3).  \n72. \nOn October 1, 2026, Respondent issued Executive Order No. 64, directing Attorney \nGeneral James to investigate the allegations underlying the Civil Case and, if warranted, present \nevidence to a grand jury and prosecute offenses arising from that investigation. \n73. \nPetitioner is an individual defendant named in the Civil Case whose alleged conduct \nfalls within the subject matter of the investigation authorized by Executive Order No. 64. \n74. \nBefore Respondent issued the Executive Order, Attorney General James publicly \naddressed Doe\u2019s allegations in the September 28, 2026 statement quoted above. Petitioner alleges \nthat the statement endorsed Doe\u2019s account before Attorney General James was entrusted with the \nreopened criminal investigation. \n75. \nRespondent thereafter designated Attorney General James to exercise investigative \nand prosecutorial discretion over the same allegations, including the assessment of Doe\u2019s \ncredibility and the determination whether charges against Petitioner are warranted. \n76. \nPetitioner alleges that Attorney General James\u2019s public endorsement of Doe\u2019s \naccount creates a substantial risk that her assessment of the evidence and exercise of discretion \nwill be influenced by the position she publicly expressed before receiving the designation. \n77. \nPetitioner alleges that vesting control of the reopened matter in an official who had \npublicly endorsed the complainant\u2019s account is inconsistent with the stated purpose of conducting \na fair and full investigation.  \n78. \nFor these reasons, Petitioner alleges that Respondent\u2019s October 1, 2026 \ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n14 of 16\n\n--- Page 15 ---\nNES\nF\nT\nAndrew\nerg,\nresulting prosecution of Petitioner, is in excess of her jurisdiction within the meaning of CPLR\n7803(2).\n79. For these reasons, Petitioner also alleges that Respondent's October l, 2026\ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any\nresulting prosecution ofPetitioner, is arbitrary and capricious and constitutes an abuse ofdiscretion\nwithin the meaning of CPLR 7803(3).\n80. 'Pursuant to CPLR 7806, Petitioner requests a judgment annulling the challenged\ndetermination to that extent or, alternatively, modiffing it to address Attorney General James's\npersonal participation and control, and remitting the matter to Respondent for reconsideration\nconsistent with the Court's judgment.\n81. Petitioner has not a made a prior application for the relief requested herein.\n\\ilHEREFOR3, Petitioner respectfully requests that the Court enter a judgment and order\ndeclaring:\na) Respondent Governor Hochul's appointment of Attorney General James as Special\nProsecutor in the investigation of the Cornell matter is voided; and\nb) Respondent Governor Hochul shall appoint a Special Prosecutor who is free from actual\nor perceived conflicts of interest or bias against Petitioner and the other individually\nnamed Defendants in the civil action\nDated:New York, New York\nOctober 7,2026\nRespectfully Submitted,\n&\nBy:\nT. Milten\nStuart Bernstein, Esq.\nTara J. Davis, Esq.\nt\n15\nEsq.\nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n15 of 16\n\n--- Page 16 ---\nOc\nber,\ne\n363 Seventh Avenue, X'ifth Floor\nNew York, New York 10001\nQLz) 736-4s00\namiltenberg@nmllplaw.com\nsb ernstein@nmllplaw. com\ntdavis@nmllplaw.com\nAtto rney s for P et\u00edt\u00edo ner\nVERIF'ICATION\nsrATE OF NEWYORK )\n) ss:\ncouNTY oF NEWYORK )\nANDREW MILTENBERG, being duly sworn, deposes and says:\nI am counsel to the Petitioner in this matter. I have read the annexed Verified Petition,\nknow the contents thereof and the same is true to my knowledge, except as to matters alleged\nupon information and belief and as to those matters, I believe them to be true.\nSigned under the pains and penalties of perjury, on this 7\u00fa day of\n2026\ntenberg, Esq\nt6\nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 10/07/2026\n16 of 16","thumbnailUrl":"https://lucycraig.blog/media/441/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/441"}