Public administrative PDF — case-20f2fbf9d925 entry #29

--- Page 1 --- Exhibit 3 FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 2 --- 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY --------------------------------------------------------X In the Matter of the Application of GILLIO LOPES, DIEGO SARABIA, SCOTT KRETZSCHMAR, WINSTON LEE, and SCOTT NORRIS, Petitioners, FOR A JUDGMENT PURSUANT TO ARTICLE 78 AND SECTION 3001 OF THE CPLR -against- KATHLEEN (“KATHY”) M. HOCHUL, in her official capacity as Governor of the State of New York, and LETITIA JAMES, in her official capacity as Attorney General of the State of New York, MATTHEW INGALLS, and JOHNATHAN NEWELL, Respondents. --------------------------------------------------------X Index No.: 911974-26 PROPOSED AMENDED VERIFIED PETITION Petitioners Gillio Lopes, Diego Sarabia, Scott Kretzschmar, Winston Lee, and Scott Norris, by and through his attorneys Nesenoff & Miltenberg, LLPtheir counsel, as and for theirhis Verified Petition against Respondents Governor Kathleen (“Kathy”) M. Hochul, and Attorney General Letitia James, Matthew Ingalls, and Johnathan Newell, respectfully alleges as follows: INTRODUCTION 1. This is a special proceeding brought against New York Governor Kathleen (“Kathy”) M. Hochul (“Governor Hochul”) pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”), to void her appointment of New York Attorney General Letitia James to serve Formatted: Indent: Left: 0.5" FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 3 --- 2 as Special Prosecutor in the case of Cornell male students alleged to have engaged in, or had knowledge of, the sexual assault of a female student. 2. On September 16, 2026, a former female student ofat Cornell University (“Jane Doe”) initiated a complaint in the Supreme Court, County of New York, Civil Action No. 161704/2026, titled Jane Doe v. Cornell University, Inc., et al., against multiple parties including the Petitioners (the “Civil Case”). 3. In the complaint, Jane Doe alleges that on October 19-20, 2024, she was coerced to consume alcohol and drugs and repeatedly sexually assaulted throughout the evening and early morning hours by seven different students, at a fraternity house on Cornell’s campus. 4. The Civil Case gained immediate and widespread national attention, resulting in daily reporting in the media, commentary on social media, and outrage by the public over how Cornell, the University Police Department, and the Tompkins County District Attorney handled the allegations when first brought to their attention in the fall of 2024. 5. In response to this growing and immense pressure and scrutiny, on October 1, 2026, Governor Hochul appointed New York Attorney General Letitia James (“Attorney General James”) to serve as Special Prosecutor to investigate the allegations and prosecute any offenses arising from such investigation. 6. The appointment of Attorney General James is improper as Attorney General James has unequivocally demonstrated a bias and presumption of guilt against the defendants named in the Civil Case, including Petitioner. 7. Specifically, three days prior to her appointment as Special Prosecutor, on September 28, 2026 at 6:13pm, Attorney General James posted to the Attorney General’s official social media platform X’s account: “What this young woman has been forced to endure is horrific FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 4 --- 3 and unacceptable. I’m holding her in my heart and in my prayers. To her, and to all survivors: you’re not alone. We stand with you.” 8. Through this official public statement, Attorney General James has made clear that she has formed an opinion about the case, that she believes the allegations made by Jane Doe, and that she has already reached the conclusion that Petitioners and the other named Defendants are guilty. 9. Accordingly, because Attorney General James is not and cannot remain neutral in investigating this matter, there is a substantial likelihood of prejudice to Petitioners if Attorney General James is permitted to remain on as Special Prosecutor. 10. For the reasons that follow, Governor Hochul’s appointment of Attorney General James as Special Prosecutor in the investigation of the Cornell matter must be voided. THE PARTIES 11. Petitioner Gillio Lopes is a natural person and a resident of a State of other than New York. 12. Upon information and belief, Petitioner Diego Sarabia is a natural person and a resident of a State other than New York. 13. Upon information and belief, Petitioner Scott Kretzschmar is a natural person and a resident of a State other than New York. 14. Upon information and belief, Petitioner Winston Lee is a natural person and a resident of New York. 11.15. Upon information and belief, Petitioner Scott Norris is a natural person and a resident of New York. Formatted: Font: (Default) +Body (Aptos) Formatted: Font: (Default) +Body (Aptos) Formatted: Font: (Default) +Body (Aptos) Formatted: Font: (Default) +Body (Aptos) FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 5 --- 4 12.16. Respondent Kathleen Hochul is the Governor of the State of New York, and a natural person and resident of the State of New York. 17. Respondent Letitia James is the Attorney General of the State of New York, and a natural person and resident of the State of New York. 18. Respondent Matthew Ingalls is a natural person whose residence is unknown. 13.19. Upon information and belief, Respondent Johnathan Newell is a natural person and resident of a State other than New York. JURISDICTION AND VENUE 14.20. This Court has jurisdiction pursuant to CPLR §§ 7801 et seq. to review whether a body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction. 15.21. Venue is proper pursuant to CPLR §§ 7804 and 506(b) because the actions of the Respondent challenged here occurred within this judicial district and the Respondent’s principal place of business is within this judicial district. FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS 16.22. On September 16, 2026, a former female student ofat Cornell University Jane Doe initiated a complaint in the Supreme Court, County of New York, against the Petitioners, six as well as two other male Cornell students or former students, Cornell University, the male student’s fraternity, Doe’s sorority, and a bar and nightclub in Ithaca, New York. Exhibit 1 (ECF No. 4). 17.23. In the complaint, Jane Doe alleges that on October 19-20, 2024, she was coerced to consume alcohol and drugs and repeatedly sexually assaulted throughout the evening and early morning hours by seven different students, at a fraternity house on Cornell’s campus, while she was incapacitated. Formatted: Font: (Default) +Body (Aptos) Formatted: Font: (Default) +Body (Aptos) Formatted: Font: Not Bold FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 6 --- 5 18.24. On or about November 8, 2024, Doe reported the incident to the Cornell University Police Department. No criminal charges were pursued at that time. 19.25. On or about January 14, 2025, Cornell initiated a Title IX investigation arising from Doe’s complaint. 20.26. Cornell thereafter investigated the matter, from approximately January 2025 through May of 2025, concluding with a hearing that spanned twelve and a half days. 21.27. Following the hearing, the student respondents were found responsible for at least one violation of Cornell’s conduct policies and were assigned sanctions ranging from probationary periods and campus bans up through permanent expulsions. 22.28. More than a year later, on September 16, 2026, Plaintiff commenced the Civil Case, which includes claims against Petitioners, for including for sexual assault and sexual battery. 23.29. Immediately following the filing of Doe’s complaint, the Civil Case began to gain widespread national attention and interest, resulting in daily reporting in the media, commentary across various social media platforms, and outrage by the public over how Cornell, the University Police Department, and the Tompkins County District Attorney handled the allegations when first brought to their attention in the fall of 2024. Exhibit 2 (ECF No. 5).. 24.30. Questions emerged about the University Police Department and District Attorney’s handling of Doe’s claims back in the fall of 2024, eventually drawing the attention of the Governor of New York. 25.31. On or about September 28, 2026, Tompkins County District Attorney Matthew Van Houten indicated that his office would be reopening the case involving Doe’s allegations and would bring the matter to a grand jury to determine if charges are warranted. FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 7 --- 6 26.32. Van Houten noted that the allegations brought in the Civil CaseCase, however, were significantly different than what Doe had initially reported to police in 2024. Exhibit 3 (ECF No. 6).. 27.33. Following Van Houten’s announcement, on October 1, 2026, Governor Hochul issued a statement in which she expressed that the initial decision by Tompkins County District Attorney Matthew Van Houten not to prosecute the case and questions surrounding the Cornell University Police Department’s actions have “undercut [her] faith, and the public’s faith, in the district attorney’s ability to effectively investigate and prosecute the case at this time.” 28.34. Thus, in response to this growing and immense pressure and scrutiny, Governor Hochul announced that she was issuing an Executive Order appointing New York Attorney General Letitia James (“Attorney General James”) to serve as special prosecutor to “investigate this incident and, if warranted, prosecute any offenses arising from that investigation and present evidence to a grand jury.” Exhibit 4. (ECF No,.No. 7). 29.35. Per the Executive Order, Governor Hochul assigned the Special Prosecutor “the powers and duties specified in subdivision 2 of section 63 of the Executive Law…” and noted the “Special Prosecutor’s jurisdiction will displace and supersede the jurisdiction of the Tompkins County District Attorney…” Exhibit 5. (ECF No,.No. 8). 30.36. The Executive Order further indicated that the Special Prosecutor “shall conduct a full, reasoned, and independent investigation including, but not limited to, gathering and analyzing evidence, conducting witness interviews, and reviewing investigative reports, scientific reports, and audio and video recordings…” Exhibit 5. (ECF No. 8). 31.37. However, the October 1st appointment of Attorney General James was highly improper as Attorney General James had previously, on September 28th, unequivocally Formatted: Font: Not Bold FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 8 --- 7 demonstrated a bias and presumption of guilt against the defendants named in the Civil Case, including Petitioners. 32.38. Specifically, on September 28, 20262026, at 6:13pm, Attorney General James posted to the Attorney General’s official social media platform X’s account: “What this young woman has been forced to endure is horrific and unacceptable. I’m holding her in my heart and in my prayers. To her, and to all survivors: you’re not alone. We stand with you.” Exhibit 6. (ECF No. 9). 33.39. Through this public statement, Attorney General James has made clear that she has already: (i) formed an opinion about the case, (ii) that she believes the allegations made by Jane Doe against Petitioners and others, andothers and considers Doe to be a victim; and (iii) she has formulated opinions about Petitioners’s and the other defendants’ guilt, before she has even begun the task of investigating the incident. 34.40. Her own words indisputably establish that Attorney General James is not and cannot remain neutral in investigating this matter and determining whether to prosecute. Allowing her to remain in the role asof Special Prosecutor will result in substantial prejudice toagainst Petitioners, as well as the other named defendants. 35.41. Thus, pursuant to CPLR § 7803(2), Governor Hochul’s appointment of Attorney General James as Special Prosecutor in the investigation of the Cornell matter must be voided. ARGUMENT I. The Governor’s Designation of Attorney General James as Special Prosecutor Warrants Prohibition Under CPLR 7803(2). 36.42. Petitioners seeks review of Respondent’s October 1, 20262026, designation of Attorney General Letitia James as Special Prosecutor to investigate and, if warranted, prosecute the allegations underlying the Civil Case. Executive Order No. 64 invokes Executive Law § 63(2) FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 9 --- 8 and supersedes the Tompkins County District Attorney with respect to that matter. Petitioners challenges the designation insofar as it places investigative and prosecutorial discretion in the hands of an official who has already publicly endorsed Plaintiff Jane Doe’s account. Exhibits 5, 6. (ECF Nos. 8 and 9). 37.43. Executive Law § 63(2) authorizes the Governor to require the Attorney General to exercise prosecutorial powers otherwise belonging to a district attorney. Petitioners acknowledges that Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223–226 (1997), recognizes broad superseder authority and generally limits judicial review to whether constitutional or statutory authority exists, rather than how lawful discretion is exercised. Petitioners does not challenge the Governor’s general power to supersede the Tompkins County District Attorney. 38.44. Petitioners instead challenges Attorney General James’s qualification to exercise that authority personally in this matter, based upon her public statement concerning the very allegations she was subsequently assigned to investigate. Petitioners submits that the prosecutorial disqualification principles discussed below impose a limitation upon her participation notwithstanding the Governor’s general superseder authority. Petitioners recognizes, however, that whether this asserted limitation supports relief under CPLR 7803(2) before prosecution presents a threshold question distinct from the merits of the disqualification claim. 39.45. New York imposes an increased standard for judicial disqualification of a public prosecutor. Ordinarily, removal requires actual prejudice arising from a demonstrated conflict of interest, or a substantial risk that an attorney will misuse confidences. People v. Adams, 20 N.Y.3d 608, 612 (2013); Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). The standard refers to the “opportunity for abuse of confidences entrusted to [an] attorney.” People v. Shinkle, 51 N.Y.2d FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 10 --- 9 417, 420 (1980). In general, “[t]he objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored.” Schumer, 60 N.Y.2d at 55. 40.46. There is a narrow exception in which an exceptionally serious appearance of impropriety warrants disqualification, including where the record objectively calls into question whether prosecutorial discretion is being exercised evenhandedly and on legitimate grounds. See Adams, 20 N.Y.3d at 612–613. 41.47. Indeed, in rare circumstances, an exceptionally serious appearance of impropriety may warrant disqualification. Adams, 20 N.Y.3d at 612–14. That inquiry includes whether the record supplies an objective basis to question whether prosecutorial discretion is being exercised evenhandedly, according to the merits and legitimate prosecutorial considerations. Id. at 613. Although Adams involved evidence of disparate treatment arising from the complainant’s position as a sitting judge, Petitioners submits that its narrow principle should inform the Court’s consideration of the circumstances presented here. 42.48. Prohibition is an extraordinary remedy and does not lie merely to correct an alleged error in the exercise of lawful discretion. The court in Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 53–56 (1983), invalidated a district attorney’s unauthorized delegation of independent prosecutorial authority before prosecution. 43.49. Schumer therefore distinguishes a defect in the grant of prosecutorial authority from an insufficiently developed challenge to the prosecutor’s personal qualification. Petitioners submits that the public statement at issue here presents a concrete qualification question, while recognizing that Schumer’s adverse holding requires the Court separately to determine whether that question is presently justiciable. FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 11 --- 10 44.50. Petitioners submits that the wording of Attorney General James’s post on social media communicated acceptance of Doe’s account. By describing what Doe “has been forced to endure” and identifying her with “survivors,” Attorney General James publicly characterized the alleged experience as an event that had occurred, beforeoccurred before she was entrusted with the reopened criminal investigation. Exhibit 6. (ECF No. 9). 45.51. While Attorney General James’s statement does not expressly declare Petitioners guilty, its significance is the apparent credibility judgment it communicates concerning the complainant whose allegations Attorney General James was subsequently assigned to investigate. 46.52. Attorney General James’s responsibilities under the Executive Order include evaluating those allegations, considering contradictory or exculpatory evidence, and determining whether criminal charges against individuals identified in the Civil Case, including Petitioners, are warranted. 47.53. Petitioners contends that publicly endorsing the complainant’s account before undertaking those responsibilities creates an objective concern that subsequent decisions may be influenced by the position Attorney General James has already expressed. The Court should consider whether that concern, in the context of the appointment and the record as a whole, amounts to a sufficiently substantial risk of prejudice to warrant limiting her participation. 48.54. Attorney General James’s October 1 statement that her office would conduct the investigation fully and fairly, guided by the facts and the law, must be considered alongside her earlier statement in evaluating whether the record supports the asserted risk of prejudgment... Petitioners submits that the later assurance should be considered together with the earlier endorsement and the nature of the authority conferred upon her. Exhibit 7. (ECF No. 10). FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 12 --- 11 49.55. Therefore, the Court should assess whether the record supports a sufficiently serious risk of prejudice to justify limiting her participation. Exhibit 8. (ECF No. 11). 50.56. While in Matter of Abelove v. Cuomo, 57 Misc. 3d 668, 676–677 (Sup. Ct. Albany County 2017), the court denied prohibition where the Attorney General was performing a purely investigative executive function, no prosecution was pending, and prosecutorial qualification could be challenged if charges were brought. Petitioners seeks review of Attorney General James’s personal qualification under the designation, rather than review of an individual investigative decision. 57. Nevertheless, Petitioners recognizes that this distinction alone does not establish entitlement to prohibition: the Court must determine whether the challenged conduct involves present or threatened quasi-judicial action, whether the asserted disqualification constitutes a legal restriction on authority, and whether an adequate alternative remedy exists. II. Alternatively, Petitioners Seeks Review Under CPLR 7803(3), To the Extent Such Review Is Available. 51.58. Alternatively, and subject to the limitations on review recognized in Johnson, Petitioners seeks review under CPLR 7803(3) on the grounds that the challenged designation was affected by an error of law or constituted an abuse of discretion. 52.59. Petitioners does not contend that the ordinary arbitrary-and-capricious standard independently establishes reviewability of the Governor’s superseder decision. If the Court determines that review under CPLR 7803(3) is available, Petitioners relyies upon Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974), in support of the alternative claim that the challenged determination lacks a rational basis in the circumstances alleged. FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 13 --- 12 53.60. Petitioners submits that entrusting the reopened investigation to an official whose prior public statement demonstratedemonstrates an objective basis to question Attorney General James’s ability to serve in a neutral manner, is in direct conflict with Respondent’s stated purpose of restoring confidence in the investigation. 54.61. Accordingly, to the extent review under CPLR 7803(3) is available, Petitioners submits that the designation should be annulled or modified insofar as it permits Attorney General James personally to direct the investigation and any resulting prosecution concerning Petitioners. III. Petitioners Haves a Direct Interest in the Challenged Designation and Seeks Protection From a Specific Risk of Prejudice. 55.62. Petitioners are is an individual defendants named in the Civil Case whose alleged conduct falls within the subject matter of the investigation authorized by Executive Order No. 64. The designation therefore directly concerns the exercise of investigative and prosecutorial authority over allegations involving Petitioners. 56.63. The authority conferred by the Executive Order encompasses consequential decisions concerning the direction of the investigation, the evidence pursued, the assessment of witnesses, the presentation of evidence to a grand jury, and whether criminal charges should be brought. Petitioner’s’ claimed harm concerns the risk that those decisions will be influenced by Attorney General James’s prior public endorsement of Doe’s account. 57.64. That concern extends beyond the ultimate determination of guilt or innocence. Investigative choices shape the record upon which subsequent decisions are made. Decisions about which witnesses to interview, which inconsistencies to examine, and which evidence to pursue may affect the factual basis for a grand jury presentation or charging determination. Petitioners seeks relief before those discretionary decisions are made under the challenged designation. FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 14 --- 13 58.65. Prompt resolution would serve the interest in determining whether the official directing the matter may lawfully continue in that role. Matter of Working Families Party v. Fisher, 23 N.Y.3d 539, 544–547 (2014), recognizes the value of resolving prosecutorial appointment questions promptly. That case, however, concerned a judicial appointment under County Law § 701 following a district attorney’s request for his own disqualification. Petitioners invokes its reasoning concerning prompt resolution, while recognizing that it does not independently establish the availability of pre-prosecution review in this proceeding. Petitioners accordingly requests that the Court determine whether the circumstances established by the record satisfy the demanding standard for relief before Attorney General James exercises further investigative or prosecutorial discretion concerning Petitioners. IV. CPLR 7806 Authorizes the Court to Annul or Modify a Challenged Determination. 59.66. If Petitioners establishes entitlement to relief under CPLR 7803, CPLR 7806 authorizes an appropriate judgment, including annulment or modification of a reviewable determination and an order directing or prohibiting specified action by Respondent. 60.67. Upon a finding that the challenged designation is unlawful or constitutes an arbitrary and capricious exercise of discretion, Petitioners requests a judgment annulling Executive Order No. 64 insofar as it authorizes Attorney General James personally to direct the investigation and any resulting prosecution of Petitioners. 61.68. Alternatively, Petitioners requests modification of the determination to limit Attorney General James’s personal participation, supervision, and control to the extent warranted by the Court’s findings, together with remittal to Governor Hochul for reconsideration consistent with the judgment and applicable law. FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 15 --- 14 62.69. The requested relief should address the prejudice established by the record while permitting a lawful investigation and any warranted prosecution to proceed. V. Harm to Petitioners 63.70. Petitioners are is an individuals named in the Civil Case whose alleged conduct falls within the investigation authorized by Executive Order No. 64. 64.71. Attorney General James’s authority encompasses the assessment of witness credibility, the pursuit of evidence, grand jury presentations, and charging decisions concerning Petitioners. 65.72. Petitioners contends that Attorney General James’s prior public endorsement of Doe’s account creates a substantial risk that these decisions will be influenced by prejudgment. 66.73. Moreover, later review may not fully remedy the consequences of investigative choices and charging decisions already made under the challenged designation. 67.74. Petitioners therefore seeks prompt review before Attorney General James exercises further investigative or prosecutorial discretion concerning themhim. AS AND FOR A FIRST CAUSE OF ACTION JUDGMENT PURSUANT TO CPLR § 7803(2) 68.75. Petitioners repeats and re-alleges each and every allegation above as if fully set forth herein. 69.76. In appointing Attorney General James to serve as Special Prosecutor in the criminal investigation of the Cornell matter, Respondent has proceeded and is proceeding in excess of her jurisdiction, in violation of CPLR 7803(2). 70.77. In appointing Attorney General James to serve as Special Prosecutor in the criminal investigation of the Cornell matter, Respondent has acted in an arbitrary and capricious manner, or committed an abuse of discretion, in violation of CPLR 7803(3). FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 16 --- 15 71.78. On October 1, 2026, Respondent issued Executive Order No. 64, directing Attorney General James to investigate the allegations underlying the Civil Case and, if warranted, present evidence to a grand jury and prosecute offenses arising from that investigation. 72.79. Petitioners are is an individual defendants named in the Civil Case whose alleged conduct falls within the subject matter of the investigation authorized by Executive Order No. 64. 73.80. Before Respondent issued the Executive Order, Attorney General James publicly addressed Doe’s allegations in the September 28, 20262026, statement quoted above. Petitioners alleges that the statement endorsed Doe’s account before Attorney General James was entrusted with the reopened criminal investigation. 74.81. Respondent thereafter designated Attorney General James to exercise investigative and prosecutorial discretion over the same allegations, including the assessment of Doe’s credibility and the determination whether charges against Petitioners are warranted. 75.82. Petitioners alleges that Attorney General James’s public endorsement of Doe’s account creates a substantial risk that her assessment of the evidence and exercise of discretion will be influenced by the position she publicly expressed before receiving the designation. 76.83. Petitioners alleges that vesting control of the reopened matter in an official who had publicly endorsed the complainant’s account is inconsistent with the stated purpose of conducting a fair and full investigation. 77.84. For these reasons, Petitioners alleges that Respondent’s October 1, 20262026, determination, insofar as it authorizes Attorney General James to direct the investigation and any resulting prosecution of Petitioners, is in excess of her jurisdiction within the meaning of CPLR 7803(2). FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 17 --- 79.$-For these reasons, Petitionerg also allege* that Respondent's October 7,2Æ62026- determination, insofar as it authorizes Attorney General James to direct the investigation and any resulting prosecution of Petitionerg, is arbitrary and capricious and constitutes an abuse of discretion within the meaning of CPLR 7803(3). 79.8.þ-Pursuant to CPLR 7806, Petitioner! requests a judgment annulling the challenged determination to that extent or, altematively, modifing it to address Attomey General James's personal participation and control, and remitting the matter to Respondent for reconsideration consistent with the Court's judgment. 8S.!Z-Petitioner-s har,-c-x not t+¡a¿dem-a$e a prior application for the relief requested herein. WHEREFORE, Petitioners. respectfully requests that the Court enter ajudgment and order declaring: a) Respondent Governor Hochul's appointment of Attomey General James as Special Prosecutor in the investigation ofthe Cornell matter is voided; and b) Respondent Governor Hochul shall appoint a Special Prosecutor who is free f¡om actual or perceived conflicts of interest or bias against Petitioner-s..-arul-.-1he-o{he+as individually named Defendants in the civil action. Dated: New York, New York 0c.tobcr.l.NelqLtLþg!-í, 2 026 Respectfully Submitted, T. Milten r8t Stuart Bernstein, Esq. Tara J. Davis, Esq. 363 Seventh ,{venue, Fifth Floor New York, New York 10001 (212) 736-4s00 [email protected] 16 FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 18 --- [email protected] [email protected] Altorneys for Petitioner lr¡pg; 17 FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 --- Page 19 --- FILED: ALBANY COUNTY CLERK 11/05/2026 04:54 P INDEX NO. 911974-26 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026 VERIFICATION STATE OF NEW YORK _ ) ) ss: COUNTY OF NEW YORK ) ANDREW MILTENBERG, being duly swom, deposes and says: | I am counsel to the Petitioner in this matter. I have read the annexed Verified Petition, knows - Formatted: Justified } the contents thereof, and the same is true to my knowledge, except as to matters alleged upon information and belief and as to those matters, I believe them to be true. | Signed under the pains and penalties of perjury, on this Baw day of OetebexNovember, 2026. \ r Andtew Miltenberg, Esq- 18