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1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
--------------------------------------------------------X
In the Matter of the Application of
GILLIO LOPES,
Petitioner,
FOR A JUDGMENT PURSUANT TO
ARTICLE 78 AND SECTION 3001 OF THE
CPLR
-against-
KATHY 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,
Respondents.
--------------------------------------------------------X
Index No.: 911974-26
AFFIRMATION IN SUPPORT OF MOTION FOR LEAVE TO AMEND
VERIFIED PETITION AND JOIN ADDITIONAL PARTIES
Andrew T. Miltenberg, an attorney duly admitted to practice before the Courts of the
State of New York, affirms, pursuant to CPLR § 2106(a) and under penalty of perjury, that the
following is true and correct:
I.
Background
1.
I am a partner at the law firm of Nesenoff & Miltenberg, LLP, attorneys for
Petitioner Gillio Lopes (“Petitioner”), in the instant matter.
2.
In that capacity, I am fully familiar with the facts and issues set forth in this
Affirmation, including communications with counsel concerning joinder, which is being submitted
in support of Petitioner’s Motion for Leave to Amend his Verified Petition.
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3.
As an initial matter, Petitioner brings to the Court’s attention a recent development
relevant to this proceeding; namely, an announcement by Attorney General James on November
4, 2026, indicating that she has appointed Jacqueline Kelly, former Civil Rights Unit Chief for the
Criminal Division in the U.S. Attorney’s Office for the Southern District of New York to “lead a
fair and comprehensive criminal investigation into an alleged sexual assault on Cornell
University’s campus in October 2024.” See https://ag.ny.gov/press-release/2026/attorney-
general-james-appoints-veteran-prosecutor-outside-counsel-cornell
4.
Importantly, this November 4 appointment does not eliminate Petitioner’s
underlying concerns about Attorney James conducting a fair investigation.
5.
The Attorney General’s press release contained a statement from Ms. Kelly which
stated in part, “I thank Attorney General James for entrusting me to lead this investigation with
her office.” (Emphasis added).
6.
Further, the press release made reference to “Kelly and her team” but never
identifies the individuals on Ms. Kelly’s team. Is her team composed of members of Attorney
General James’ staff, whom the Attorney General has herself selected?
7.
Additionally, the announcement does not state that Attorney General James has
in fact recused herself, relinquished supervisory authority, surrendered charging authority, or
agreed not to participate in decisions concerning Petitioner. Thus, while the appointment of
Ms. Kelly changes the face of the investigation, it does not establish any change in ultimate
authority.
8.
Instead, while Ms. Kelly will “lead” the investigation, her team will report
directly to the OAG.
9.
What does “report to James” mean? Does James:
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•
receive Kelly’s factual assessments?
•
receive credibility determinations?
•
receive charging recommendations?
•
approve or reject charges?
•
approve grand-jury presentation?
•
direct further investigation?
•
have authority to countermand Kelly?
•
have authority to remove Kelly?
•
participate in strategy meetings?
•
decide whether the investigation ends?
10.
Despite the appointment of experienced outside counsel, Petitioner maintains
that the narrow relief previously requested is feasible and warranted: continuation of the
investigation under a qualified designee without Attorney General James’s personal
participation, supervision, or control.
11.
Should Your Honor deem necessary, Petitioner would appreciate the
opportunity to submit a supplemental filing regarding this new development.
12.
Petitioner seeks leave under CPLR 401 and 3025(b) to file and serve the
proposed Amended Verified Petition.
13.
My office filed the Petition on behalf of our client Gillio Lopes on October 7,
2026.
14.
Through that Petition, brought pursuant to Article 78, Mr. Lopes requested that
Governor Kathleen Hochul’s appointment of New York Attorney General Letitia James to
serve 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 (“Jane Doe”) be voided.
15.
Specifically, three days prior to Attorney General James’s appointment as
Special Prosecutor in the matter, on September 28, 2026, at 6:13pm, she posted to the Attorney
General’s official social media account on X: “What this young woman has been forced to
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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.”
16.
In light of the foregoing statement, it is apparent that Attorney General James
is not, and cannot, remain neutral in investigating this matter, and there is thus a substantial
likelihood of prejudice to all of the individually named Defendants in the civil case, if
Attorney General James is permitted to remain involved in the investigation in any capacity.
17.
I, together with my partner Stuart Bernstein, Esq. appeared before this Court
for oral argument on Petitioner’s Article 78 proceeding on October 29, 2026.
18.
At the October 29, 2026, oral argument, the Court raised whether the six other
defendants individually named in the underlying civil action should be joined as parties to this
proceeding. The Court questioned how a ruling concerning the Attorney General’s
appointment would affect those individuals and raised the possibility of inconsistent rulings.
Consequently, the Court permitted a joinder application or submission by November 5, 2026.
(Exhibit 1, Hearing Tr. 12:5–20, 13:3–25, 41:4–16, 42:13–43:3.)
II.
Counsel’s Outreach and the Individuals’ Positions Regarding Joinder
19.
Following oral argument, Petitioner’s counsel contacted the other individuals
subject to the investigation at issue, through their counsel for those who are currently
represented, to ascertain their positions on joining this proceeding. This communication was
made via email correspondence dated October 30, 2026 (Exhibit 2).
20.
My colleagues Stuart Bernstein, Tara Davis, Kirsten Roy, and I met with
counsel for Defendants via Zoom on November 4, 2026, to discuss this submission and each
of the attorneys’ respective positions.
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21.
The positions of each of the individually named Defendants as of November 5,
2026, are set forth below.
22.
Diego Sarabia. Through his counsel Craig Knox and Alishah Bhimani of
Hacker Murphy, LLP, Mr. Sarabia has confirmed that he will join the proceeding, in support
of joinder and removal of AG James.
23.
Scott Kretzschmar. Through his counsel Alan Sash of Bushell, Sovak, Kane &
Sash LLP, Mr. Kretzschmar has confirmed that he will join the proceeding, in support of
joinder and removal of AG James.
24.
Winston Lee. Through his counsel Teny Geragos of Agnifilo Intrater, Mr. Lee
has confirmed that he will join the proceeding, in support of joinder and removal of AG James.
25.
Scott Norris. Through his counsel Mark Cuccaro, Alexandra Conlon, and
Raphael Friedman of Sher Tremonte LLP, Mr. Norris has confirmed that he wishes to join the
proceeding, and to reserve the right to participate, if appropriate.
26.
Matthew Ingalls. Mr. Ingalls is not currently represented in the pending civil
matter, and my office was not able to locate contact information for him. Thus, as of the time
of this filing, Mr. Ingalls has not responded or provided his position.
27.
Johnathan Newell. Mr. Newell is not currently represented in the pending civil
matter. As such, my office reached out to Mr. Newell by email on October 30, 2026, to obtain
his position regarding the request for relief made in Mr. Lopes’s petition. As of the time of
this filing, Mr. Newell has not responded or provided his position.
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ilr.
Pronosed Amenrìment and Relief Reouested
28. Petitioner respectfully requests that he be permitted to submit a Proposed
Amended Verified Petition, which includes as co-petitioners, the following individuals: Diego
Sarabia, Scott Kretzschmar, Winston Lee, and Scott Norris. The proposed amended pleading
is attached as Exhibit 3.
29.
The co-Petitioners join in the requested relief, declaring that:
a. Respondent Governor Hochul's appointment of Attorney General James as
Special Prosecutor in the investigation of the Cornell matter is voided; and
b. Respondent Governor Hochul shall appoint a Special Prosecutor who is free
from actual or perceived conflicts of interest or bias against Petitioner and the
other individually named Defendants in the civil action.
30. Petitioner respectfully requests that the Court direct notice under CPLR 7802(d)
to the remaining individuals and give them an opportunity to state their positions. If the Court
determines that any other individual is a necessary party and subject to its jurisdiction,
Petitioner respectfully requests an order directing joinder and service under CPLR 1001.
I affirm this 4th day of November 2026, under the penalties of perjury under the laws of
New York, which may include a fine or imprisonment, that the foregoing is true, except as to
matters alleged on information and belief and as to those matters, I believe it to be true, and I
understand that this document may be filed in an action or proceeding in a court of law.
Dated:New York, New York
November 5,2026
An
By:
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PUBLIC DISCUSSION
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