{"@context":"https://schema.org","@type":"DigitalDocument","altText":"Public administrative PDF \u2014 case-20f2fbf9d925 entry #29","alternateName":"needs-review-76491a6267-911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_EXHIBIT_S__29.pdf","caption":"","contentUrl":"https://lucycraig.blog/media/760/raw","datePublished":"2026-11-05T23:40:16+00:00","description":"","encodingFormat":"application/pdf","identifier":"760","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/760/index.json","markdown":"https://lucycraig.blog/media/760/index.md"},"name":"Public administrative PDF \u2014 case-20f2fbf9d925 entry #29","ocrStatus":"ready","ocrText":"--- Page 1 ---\nExhibit 3 \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 2 ---\n1 \nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \nIn the Matter of the Application of  \nGILLIO LOPES, DIEGO SARABIA, \nSCOTT KRETZSCHMAR, WINSTON LEE, \nand SCOTT NORRIS, \nPetitioners, \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n-against-\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, MATTHEW INGALLS, \nand JOHNATHAN NEWELL, \nRespondents. \n--------------------------------------------------------X \nIndex No.:   911974-26 \nPROPOSED AMENDED        \nVERIFIED PETITION \nPetitioners Gillio Lopes, Diego Sarabia, Scott Kretzschmar, Winston Lee, and Scott Norris, \nby and through his attorneys Nesenoff & Miltenberg, LLPtheir counsel, as and for theirhis Verified \nPetition against Respondents Governor Kathleen (\u201cKathy\u201d) M. Hochul, and Attorney General \nLetitia James, Matthew Ingalls, and Johnathan Newell, 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 \nFormatted: Indent: Left:  0.5\"\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 3 ---\n2 \n \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. \n2. \nOn September 16, 2026, a former female student ofat 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 Petitioners (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 \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 4 ---\n3 \n \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 \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 Petitioners 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 Petitioners 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. \nUpon information and belief, Petitioner Diego Sarabia is a natural person and a \nresident of a State other than New York. \n13. \nUpon information and belief, Petitioner Scott Kretzschmar is a natural person and \na resident of a State other than New York. \n14. \nUpon information and belief, Petitioner Winston Lee is a natural person and a \nresident of New York. \n11.15. Upon information and belief, Petitioner Scott Norris is a natural person and a \nresident of New York. \nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 5 ---\n4 \n \n12.16. Respondent Kathleen Hochul is the Governor of the State of New York, and a \nnatural person and resident of the State of New York. \n17. \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. \n18. \nRespondent Matthew Ingalls is a natural person whose residence is unknown. \n13.19. Upon information and belief, Respondent Johnathan Newell is a natural person and \nresident of a State other than New York.  \nJURISDICTION AND VENUE \n14.20. This 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.  \n15.21. Venue 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.  \nFACTUAL ALLEGATIONS COMMON TO ALL CLAIMS \n16.22. On September 16, 2026, a former female student ofat Cornell University Jane Doe \ninitiated a complaint in the Supreme Court, County of New York, against the Petitioners, six as \nwell as two other male Cornell students or former students, Cornell University, the male student\u2019s \nfraternity, Doe\u2019s sorority, and a bar and nightclub in Ithaca, New York. Exhibit 1 (ECF No. 4).  \n17.23. In 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. \nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: Not Bold\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 6 ---\n5 \n \n18.24. On or about November 8, 2024, Doe reported the incident to the Cornell University \nPolice Department. No criminal charges were pursued at that time.  \n19.25. On or about January 14, 2025, Cornell initiated a Title IX investigation arising from \nDoe\u2019s complaint.  \n20.26. Cornell thereafter investigated the matter, from approximately January 2025 \nthrough May of 2025, concluding with a hearing that spanned twelve and a half days.  \n21.27. Following 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.  \n22.28. More than a year later, on September 16, 2026, Plaintiff commenced the Civil Case, \nwhich includes claims against Petitioners, for including for sexual assault and sexual battery. \n23.29. Immediately 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 \nPolice Department, and the Tompkins County District Attorney handled the allegations when first \nbrought to their attention in the fall of 2024. Exhibit 2 (ECF No. 5)..  \n24.30. Questions 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.  \n25.31. On 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.  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 7 ---\n6 \n \n26.32. Van Houten noted that the allegations brought in the Civil CaseCase, however, were \nsignificantly different than what Doe had initially reported to police in 2024. Exhibit 3 (ECF No. \n6)..  \n27.33. Following 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 \n28.34. Thus, 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. (ECF No,.No. 7).  \n29.35. Per 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 \n\u201cSpecial Prosecutor\u2019s jurisdiction will displace and supersede the jurisdiction of the Tompkins \nCounty District Attorney\u2026\u201d   Exhibit 5. (ECF No,.No. 8).  \n30.36. The 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. (ECF No. 8).  \n31.37. However, the October 1st appointment of Attorney General James was highly \nimproper as Attorney General James had previously, on September 28th, unequivocally \nFormatted: Font: Not Bold\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 8 ---\n7 \n \ndemonstrated a bias and presumption of guilt against the defendants named in the Civil Case, \nincluding Petitioners.  \n32.38. Specifically, on September 28, 20262026, at 6:13pm, Attorney General James \nposted to the Attorney General\u2019s official social media platform X\u2019s account: \u201cWhat this young \nwoman has been forced to endure is horrific and unacceptable. I\u2019m holding her in my heart and in \nmy prayers. To her, and to all survivors: you\u2019re not alone. We stand with you.\u201d Exhibit 6. (ECF \nNo. 9).  \n33.39. Through 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 Petitioners and others, andothers and considers Doe to be a victim; and (iii) she has \nformulated opinions about Petitioners\u2019s and the other defendants\u2019 guilt, before she has even begun \nthe task of investigating the incident.  \n34.40. Her 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 asof Special Prosecutor will result in substantial prejudice toagainst \nPetitioners, as well as the other named defendants. \n35.41. Thus, 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 \n36.42. Petitioners seeks review of Respondent\u2019s October 1, 20262026, designation of \nAttorney General Letitia James as Special Prosecutor to investigate and, if warranted, prosecute \nthe allegations underlying the Civil Case. Executive Order No. 64 invokes Executive Law \u00a7 63(2) \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 9 ---\n8 \n \nand supersedes the Tompkins County District Attorney with respect to that matter. Petitioners \nchallenges the designation insofar as it places investigative and prosecutorial discretion in the \nhands of an official who has already publicly endorsed Plaintiff Jane Doe\u2019s account. Exhibits 5, \n6. (ECF Nos. 8 and 9). \n37.43. Executive Law \u00a7 63(2) authorizes the Governor to require the Attorney General to \nexercise prosecutorial powers otherwise belonging to a district attorney. Petitioners 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. Petitioners does not challenge the Governor\u2019s \ngeneral power to supersede the Tompkins County District Attorney. \n38.44. Petitioners 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. Petitioners submits that the prosecutorial \ndisqualification principles discussed below impose a limitation upon her participation \nnotwithstanding the Governor\u2019s general superseder authority. Petitioners 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. \n39.45. New 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 \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 10 ---\n9 \n \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. \n40.46. There 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. \n41.47. Indeed, 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, Petitioners submits that its narrow principle should inform the Court\u2019s \nconsideration of the circumstances presented here.  \n42.48. Prohibition 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.  \n43.49. Schumer therefore distinguishes a defect in the grant of prosecutorial authority from \nan insufficiently developed challenge to the prosecutor\u2019s personal qualification. Petitioners \nsubmits that the public statement at issue here presents a concrete qualification question, while \nrecognizing that Schumer\u2019s adverse holding requires the Court separately to determine whether \nthat question is presently justiciable. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 11 ---\n10 \n \n44.50. Petitioners 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, beforeoccurred before she was entrusted with the \nreopened criminal investigation. Exhibit 6. (ECF No. 9).  \n45.51. While Attorney General James\u2019s statement does not expressly declare Petitioners \nguilty, its significance is the apparent credibility judgment it communicates concerning the \ncomplainant whose allegations Attorney General James was subsequently assigned to investigate. \n46.52. Attorney 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 Petitioners, are \nwarranted. \n47.53. Petitioners 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. \n48.54. Attorney 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... \nPetitioners submits that the later assurance should be considered together with the earlier \nendorsement and the nature of the authority conferred upon her. Exhibit 7. (ECF No. 10).   \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 12 ---\n11 \n \n49.55. Therefore, the Court should assess whether the record supports a sufficiently \nserious risk of prejudice to justify limiting her participation. Exhibit 8. (ECF No. 11).  \n50.56. While 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. Petitioners seeks review of Attorney General James\u2019s \npersonal qualification under the designation, rather than review of an individual investigative \ndecision.  \n57. \nNevertheless, Petitioners 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. \n \nII. \nAlternatively, Petitioners Seeks Review Under CPLR 7803(3), To the Extent Such \nReview Is Available.  \n \n51.58. Alternatively, and subject to the limitations on review recognized in Johnson, \nPetitioners 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.  \n52.59. Petitioners does not contend that the ordinary arbitrary-and-capricious standard \nindependently establishes reviewability of the Governor\u2019s superseder decision. If the Court \ndetermines that review under CPLR 7803(3) is available, Petitioners relyies 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. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 13 ---\n12 \n \n53.60. Petitioners submits that entrusting the reopened investigation to an official whose \nprior public statement demonstratedemonstrates an objective basis to question Attorney General \nJames\u2019s ability to serve in a neutral manner, is in direct conflict with Respondent\u2019s stated purpose \nof restoring confidence in the investigation. \n54.61. Accordingly, to the extent review under CPLR 7803(3) is available, Petitioners \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 Petitioners. \nIII. \nPetitioners Haves a Direct Interest in the Challenged Designation and Seeks \nProtection From a Specific Risk of Prejudice. \n \n55.62. Petitioners are is an individual defendants named in the Civil Case whose alleged \nconduct falls within the subject matter of the investigation authorized by Executive Order No. 64. \nThe designation therefore directly concerns the exercise of investigative and prosecutorial \nauthority over allegations involving Petitioners. \n56.63. The 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\u2019 claimed harm concerns the risk that those decisions will be influenced by \nAttorney General James\u2019s prior public endorsement of Doe\u2019s account. \n57.64. That 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 \nmay affect the factual basis for a grand jury presentation or charging determination. Petitioners \nseeks relief before those discretionary decisions are made under the challenged designation. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 14 ---\n13 \n \n58.65. Prompt 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. Petitioners invokes its \nreasoning concerning prompt resolution, while recognizing that it does not independently establish \nthe availability of pre-prosecution review in this proceeding. Petitioners 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 Petitioners. \nIV.  \nCPLR 7806 Authorizes the Court to Annul or Modify a Challenged Determination. \n \n59.66. If Petitioners 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. \n60.67. Upon a finding that the challenged designation is unlawful or constitutes an \narbitrary and capricious exercise of discretion, Petitioners 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 Petitioners. \n61.68. Alternatively, Petitioners requests modification of the determination to limit \nAttorney General James\u2019s personal participation, supervision, and control to the extent warranted \nby the Court\u2019s findings, together with remittal to Governor Hochul for reconsideration consistent \nwith the judgment and applicable law. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 15 ---\n14 \n \n62.69. The requested relief should address the prejudice established by the record while \npermitting a lawful investigation and any warranted prosecution to proceed. \nV. \nHarm to Petitioners  \n63.70. Petitioners are is an individuals named in the Civil Case whose alleged conduct \nfalls within the investigation authorized by Executive Order No. 64.  \n64.71. Attorney General James\u2019s authority encompasses the assessment of witness \ncredibility, the pursuit of evidence, grand jury presentations, and charging decisions concerning \nPetitioners.  \n65.72. Petitioners 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.  \n66.73. Moreover, later review may not fully remedy the consequences of investigative \nchoices and charging decisions already made under the challenged designation.  \n67.74. Petitioners therefore seeks prompt review before Attorney General James exercises \nfurther investigative or prosecutorial discretion concerning themhim. \nAS AND FOR A FIRST CAUSE OF ACTION \nJUDGMENT PURSUANT TO CPLR \u00a7 7803(2) \n \n68.75. Petitioners repeats and re-alleges each and every allegation above as if fully set \nforth herein. \n69.76. In 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).  \n70.77. In 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).  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 16 ---\n15 \n \n71.78. On 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. \n72.79. Petitioners are is an individual defendants named in the Civil Case whose alleged \nconduct falls within the subject matter of the investigation authorized by Executive Order No. 64. \n73.80. Before Respondent issued the Executive Order, Attorney General James publicly \naddressed Doe\u2019s allegations in the September 28, 20262026, statement quoted above. Petitioners \nalleges that the statement endorsed Doe\u2019s account before Attorney General James was entrusted \nwith the reopened criminal investigation. \n74.81. Respondent 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 Petitioners are warranted. \n75.82. Petitioners 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. \n76.83. Petitioners 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.  \n77.84. For these reasons, Petitioners alleges that Respondent\u2019s October 1, 20262026, \ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any \nresulting prosecution of Petitioners, is in excess of her jurisdiction within the meaning of CPLR \n7803(2). \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 17 ---\n79.$-For these reasons, Petitionerg also allege* that Respondent's October 7,2\u00c662026-\ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any\nresulting prosecution of Petitionerg, is arbitrary and capricious and constitutes an abuse of\ndiscretion within the meaning of CPLR 7803(3).\n79.8.\u00fe-Pursuant to CPLR 7806, Petitioner! requests a judgment annulling the challenged\ndetermination to that extent or, altematively, modifing it to address Attomey General James's\npersonal participation and control, and remitting the matter to Respondent for reconsideration\nconsistent with the Court's judgment.\n8S.!Z-Petitioner-s har,-c-x not t+\u00a1a\u00bfdem-a$e a prior application for the relief requested herein.\nWHEREFORE, Petitioners. respectfully requests that the Court enter ajudgment and order\ndeclaring:\na) Respondent Governor Hochul's appointment of Attomey General James as Special\nProsecutor in the investigation ofthe Cornell matter is voided; and\nb) Respondent Governor Hochul shall appoint a Special Prosecutor who is free f\u00a1om actual\nor perceived conflicts of interest or bias against Petitioner-s..-arul-.-1he-o{he+as \nindividually\nnamed Defendants in the civil action.\nDated: New York, New York\n0c.tobcr.l.NelqLtL\u00feg!-\u00ed, \n2 026\nRespectfully Submitted,\nT. Milten\nr8t\nStuart Bernstein, Esq.\nTara J. Davis, Esq.\n363 Seventh ,{venue, Fifth Floor\nNew York, New York 10001\n(212) 736-4s00\namiltenberg@nmllplaw.com\n16\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 18 ---\nsbernstein@nmllplaw.com\ntdavis@nmllplaw.com\nAltorneys for Petitioner lr\u00a1pg;\n17\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 19 ---\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 P INDEX NO. 911974-26\nNYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026\nVERIFICATION\nSTATE OF NEW YORK _ )\n) ss:\nCOUNTY OF NEW YORK )\nANDREW MILTENBERG, being duly swom, deposes and says:\n| I am counsel to the Petitioner in this matter. I have read the annexed Verified Petition, knows - Formatted: Justified }\nthe contents thereof, and the same is true to my knowledge, except as to matters alleged upon\ninformation and belief and as to those matters, I believe them to be true.\n| Signed under the pains and penalties of perjury, on this Baw day of OetebexNovember,\n2026. \\ r\nAndtew Miltenberg, Esq-\n18\n","text":"--- Page 1 ---\nExhibit 3 \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 2 ---\n1 \nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \nIn the Matter of the Application of  \nGILLIO LOPES, DIEGO SARABIA, \nSCOTT KRETZSCHMAR, WINSTON LEE, \nand SCOTT NORRIS, \nPetitioners, \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n-against-\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, MATTHEW INGALLS, \nand JOHNATHAN NEWELL, \nRespondents. \n--------------------------------------------------------X \nIndex No.:   911974-26 \nPROPOSED AMENDED        \nVERIFIED PETITION \nPetitioners Gillio Lopes, Diego Sarabia, Scott Kretzschmar, Winston Lee, and Scott Norris, \nby and through his attorneys Nesenoff & Miltenberg, LLPtheir counsel, as and for theirhis Verified \nPetition against Respondents Governor Kathleen (\u201cKathy\u201d) M. Hochul, and Attorney General \nLetitia James, Matthew Ingalls, and Johnathan Newell, 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 \nFormatted: Indent: Left:  0.5\"\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 3 ---\n2 \n \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. \n2. \nOn September 16, 2026, a former female student ofat 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 Petitioners (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 \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 4 ---\n3 \n \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 \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 Petitioners 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 Petitioners 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. \nUpon information and belief, Petitioner Diego Sarabia is a natural person and a \nresident of a State other than New York. \n13. \nUpon information and belief, Petitioner Scott Kretzschmar is a natural person and \na resident of a State other than New York. \n14. \nUpon information and belief, Petitioner Winston Lee is a natural person and a \nresident of New York. \n11.15. Upon information and belief, Petitioner Scott Norris is a natural person and a \nresident of New York. \nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 5 ---\n4 \n \n12.16. Respondent Kathleen Hochul is the Governor of the State of New York, and a \nnatural person and resident of the State of New York. \n17. \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. \n18. \nRespondent Matthew Ingalls is a natural person whose residence is unknown. \n13.19. Upon information and belief, Respondent Johnathan Newell is a natural person and \nresident of a State other than New York.  \nJURISDICTION AND VENUE \n14.20. This 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.  \n15.21. Venue 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.  \nFACTUAL ALLEGATIONS COMMON TO ALL CLAIMS \n16.22. On September 16, 2026, a former female student ofat Cornell University Jane Doe \ninitiated a complaint in the Supreme Court, County of New York, against the Petitioners, six as \nwell as two other male Cornell students or former students, Cornell University, the male student\u2019s \nfraternity, Doe\u2019s sorority, and a bar and nightclub in Ithaca, New York. Exhibit 1 (ECF No. 4).  \n17.23. In 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. \nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: (Default) +Body (Aptos)\nFormatted: Font: Not Bold\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 6 ---\n5 \n \n18.24. On or about November 8, 2024, Doe reported the incident to the Cornell University \nPolice Department. No criminal charges were pursued at that time.  \n19.25. On or about January 14, 2025, Cornell initiated a Title IX investigation arising from \nDoe\u2019s complaint.  \n20.26. Cornell thereafter investigated the matter, from approximately January 2025 \nthrough May of 2025, concluding with a hearing that spanned twelve and a half days.  \n21.27. Following 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.  \n22.28. More than a year later, on September 16, 2026, Plaintiff commenced the Civil Case, \nwhich includes claims against Petitioners, for including for sexual assault and sexual battery. \n23.29. Immediately 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 \nPolice Department, and the Tompkins County District Attorney handled the allegations when first \nbrought to their attention in the fall of 2024. Exhibit 2 (ECF No. 5)..  \n24.30. Questions 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.  \n25.31. On 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.  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 7 ---\n6 \n \n26.32. Van Houten noted that the allegations brought in the Civil CaseCase, however, were \nsignificantly different than what Doe had initially reported to police in 2024. Exhibit 3 (ECF No. \n6)..  \n27.33. Following 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 \n28.34. Thus, 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. (ECF No,.No. 7).  \n29.35. Per 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 \n\u201cSpecial Prosecutor\u2019s jurisdiction will displace and supersede the jurisdiction of the Tompkins \nCounty District Attorney\u2026\u201d   Exhibit 5. (ECF No,.No. 8).  \n30.36. The 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. (ECF No. 8).  \n31.37. However, the October 1st appointment of Attorney General James was highly \nimproper as Attorney General James had previously, on September 28th, unequivocally \nFormatted: Font: Not Bold\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 8 ---\n7 \n \ndemonstrated a bias and presumption of guilt against the defendants named in the Civil Case, \nincluding Petitioners.  \n32.38. Specifically, on September 28, 20262026, at 6:13pm, Attorney General James \nposted to the Attorney General\u2019s official social media platform X\u2019s account: \u201cWhat this young \nwoman has been forced to endure is horrific and unacceptable. I\u2019m holding her in my heart and in \nmy prayers. To her, and to all survivors: you\u2019re not alone. We stand with you.\u201d Exhibit 6. (ECF \nNo. 9).  \n33.39. Through 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 Petitioners and others, andothers and considers Doe to be a victim; and (iii) she has \nformulated opinions about Petitioners\u2019s and the other defendants\u2019 guilt, before she has even begun \nthe task of investigating the incident.  \n34.40. Her 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 asof Special Prosecutor will result in substantial prejudice toagainst \nPetitioners, as well as the other named defendants. \n35.41. Thus, 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 \n36.42. Petitioners seeks review of Respondent\u2019s October 1, 20262026, designation of \nAttorney General Letitia James as Special Prosecutor to investigate and, if warranted, prosecute \nthe allegations underlying the Civil Case. Executive Order No. 64 invokes Executive Law \u00a7 63(2) \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 9 ---\n8 \n \nand supersedes the Tompkins County District Attorney with respect to that matter. Petitioners \nchallenges the designation insofar as it places investigative and prosecutorial discretion in the \nhands of an official who has already publicly endorsed Plaintiff Jane Doe\u2019s account. Exhibits 5, \n6. (ECF Nos. 8 and 9). \n37.43. Executive Law \u00a7 63(2) authorizes the Governor to require the Attorney General to \nexercise prosecutorial powers otherwise belonging to a district attorney. Petitioners 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. Petitioners does not challenge the Governor\u2019s \ngeneral power to supersede the Tompkins County District Attorney. \n38.44. Petitioners 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. Petitioners submits that the prosecutorial \ndisqualification principles discussed below impose a limitation upon her participation \nnotwithstanding the Governor\u2019s general superseder authority. Petitioners 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. \n39.45. New 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 \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 10 ---\n9 \n \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. \n40.46. There 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. \n41.47. Indeed, 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, Petitioners submits that its narrow principle should inform the Court\u2019s \nconsideration of the circumstances presented here.  \n42.48. Prohibition 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.  \n43.49. Schumer therefore distinguishes a defect in the grant of prosecutorial authority from \nan insufficiently developed challenge to the prosecutor\u2019s personal qualification. Petitioners \nsubmits that the public statement at issue here presents a concrete qualification question, while \nrecognizing that Schumer\u2019s adverse holding requires the Court separately to determine whether \nthat question is presently justiciable. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 11 ---\n10 \n \n44.50. Petitioners 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, beforeoccurred before she was entrusted with the \nreopened criminal investigation. Exhibit 6. (ECF No. 9).  \n45.51. While Attorney General James\u2019s statement does not expressly declare Petitioners \nguilty, its significance is the apparent credibility judgment it communicates concerning the \ncomplainant whose allegations Attorney General James was subsequently assigned to investigate. \n46.52. Attorney 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 Petitioners, are \nwarranted. \n47.53. Petitioners 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. \n48.54. Attorney 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... \nPetitioners submits that the later assurance should be considered together with the earlier \nendorsement and the nature of the authority conferred upon her. Exhibit 7. (ECF No. 10).   \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 12 ---\n11 \n \n49.55. Therefore, the Court should assess whether the record supports a sufficiently \nserious risk of prejudice to justify limiting her participation. Exhibit 8. (ECF No. 11).  \n50.56. While 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. Petitioners seeks review of Attorney General James\u2019s \npersonal qualification under the designation, rather than review of an individual investigative \ndecision.  \n57. \nNevertheless, Petitioners 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. \n \nII. \nAlternatively, Petitioners Seeks Review Under CPLR 7803(3), To the Extent Such \nReview Is Available.  \n \n51.58. Alternatively, and subject to the limitations on review recognized in Johnson, \nPetitioners 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.  \n52.59. Petitioners does not contend that the ordinary arbitrary-and-capricious standard \nindependently establishes reviewability of the Governor\u2019s superseder decision. If the Court \ndetermines that review under CPLR 7803(3) is available, Petitioners relyies 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. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 13 ---\n12 \n \n53.60. Petitioners submits that entrusting the reopened investigation to an official whose \nprior public statement demonstratedemonstrates an objective basis to question Attorney General \nJames\u2019s ability to serve in a neutral manner, is in direct conflict with Respondent\u2019s stated purpose \nof restoring confidence in the investigation. \n54.61. Accordingly, to the extent review under CPLR 7803(3) is available, Petitioners \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 Petitioners. \nIII. \nPetitioners Haves a Direct Interest in the Challenged Designation and Seeks \nProtection From a Specific Risk of Prejudice. \n \n55.62. Petitioners are is an individual defendants named in the Civil Case whose alleged \nconduct falls within the subject matter of the investigation authorized by Executive Order No. 64. \nThe designation therefore directly concerns the exercise of investigative and prosecutorial \nauthority over allegations involving Petitioners. \n56.63. The 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\u2019 claimed harm concerns the risk that those decisions will be influenced by \nAttorney General James\u2019s prior public endorsement of Doe\u2019s account. \n57.64. That 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 \nmay affect the factual basis for a grand jury presentation or charging determination. Petitioners \nseeks relief before those discretionary decisions are made under the challenged designation. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 14 ---\n13 \n \n58.65. Prompt 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. Petitioners invokes its \nreasoning concerning prompt resolution, while recognizing that it does not independently establish \nthe availability of pre-prosecution review in this proceeding. Petitioners 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 Petitioners. \nIV.  \nCPLR 7806 Authorizes the Court to Annul or Modify a Challenged Determination. \n \n59.66. If Petitioners 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. \n60.67. Upon a finding that the challenged designation is unlawful or constitutes an \narbitrary and capricious exercise of discretion, Petitioners 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 Petitioners. \n61.68. Alternatively, Petitioners requests modification of the determination to limit \nAttorney General James\u2019s personal participation, supervision, and control to the extent warranted \nby the Court\u2019s findings, together with remittal to Governor Hochul for reconsideration consistent \nwith the judgment and applicable law. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 15 ---\n14 \n \n62.69. The requested relief should address the prejudice established by the record while \npermitting a lawful investigation and any warranted prosecution to proceed. \nV. \nHarm to Petitioners  \n63.70. Petitioners are is an individuals named in the Civil Case whose alleged conduct \nfalls within the investigation authorized by Executive Order No. 64.  \n64.71. Attorney General James\u2019s authority encompasses the assessment of witness \ncredibility, the pursuit of evidence, grand jury presentations, and charging decisions concerning \nPetitioners.  \n65.72. Petitioners 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.  \n66.73. Moreover, later review may not fully remedy the consequences of investigative \nchoices and charging decisions already made under the challenged designation.  \n67.74. Petitioners therefore seeks prompt review before Attorney General James exercises \nfurther investigative or prosecutorial discretion concerning themhim. \nAS AND FOR A FIRST CAUSE OF ACTION \nJUDGMENT PURSUANT TO CPLR \u00a7 7803(2) \n \n68.75. Petitioners repeats and re-alleges each and every allegation above as if fully set \nforth herein. \n69.76. In 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).  \n70.77. In 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).  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 16 ---\n15 \n \n71.78. On 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. \n72.79. Petitioners are is an individual defendants named in the Civil Case whose alleged \nconduct falls within the subject matter of the investigation authorized by Executive Order No. 64. \n73.80. Before Respondent issued the Executive Order, Attorney General James publicly \naddressed Doe\u2019s allegations in the September 28, 20262026, statement quoted above. Petitioners \nalleges that the statement endorsed Doe\u2019s account before Attorney General James was entrusted \nwith the reopened criminal investigation. \n74.81. Respondent 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 Petitioners are warranted. \n75.82. Petitioners 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. \n76.83. Petitioners 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.  \n77.84. For these reasons, Petitioners alleges that Respondent\u2019s October 1, 20262026, \ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any \nresulting prosecution of Petitioners, is in excess of her jurisdiction within the meaning of CPLR \n7803(2). \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 17 ---\n79.$-For these reasons, Petitionerg also allege* that Respondent's October 7,2\u00c662026-\ndetermination, insofar as it authorizes Attorney General James to direct the investigation and any\nresulting prosecution of Petitionerg, is arbitrary and capricious and constitutes an abuse of\ndiscretion within the meaning of CPLR 7803(3).\n79.8.\u00fe-Pursuant to CPLR 7806, Petitioner! requests a judgment annulling the challenged\ndetermination to that extent or, altematively, modifing it to address Attomey General James's\npersonal participation and control, and remitting the matter to Respondent for reconsideration\nconsistent with the Court's judgment.\n8S.!Z-Petitioner-s har,-c-x not t+\u00a1a\u00bfdem-a$e a prior application for the relief requested herein.\nWHEREFORE, Petitioners. respectfully requests that the Court enter ajudgment and order\ndeclaring:\na) Respondent Governor Hochul's appointment of Attomey General James as Special\nProsecutor in the investigation ofthe Cornell matter is voided; and\nb) Respondent Governor Hochul shall appoint a Special Prosecutor who is free f\u00a1om actual\nor perceived conflicts of interest or bias against Petitioner-s..-arul-.-1he-o{he+as \nindividually\nnamed Defendants in the civil action.\nDated: New York, New York\n0c.tobcr.l.NelqLtL\u00feg!-\u00ed, \n2 026\nRespectfully Submitted,\nT. Milten\nr8t\nStuart Bernstein, Esq.\nTara J. Davis, Esq.\n363 Seventh ,{venue, Fifth Floor\nNew York, New York 10001\n(212) 736-4s00\namiltenberg@nmllplaw.com\n16\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 18 ---\nsbernstein@nmllplaw.com\ntdavis@nmllplaw.com\nAltorneys for Petitioner lr\u00a1pg;\n17\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 29\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 19 ---\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 P INDEX NO. 911974-26\nNYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/05/2026\nVERIFICATION\nSTATE OF NEW YORK _ )\n) ss:\nCOUNTY OF NEW YORK )\nANDREW MILTENBERG, being duly swom, deposes and says:\n| I am counsel to the Petitioner in this matter. I have read the annexed Verified Petition, knows - Formatted: Justified }\nthe contents thereof, and the same is true to my knowledge, except as to matters alleged upon\ninformation and belief and as to those matters, I believe them to be true.\n| Signed under the pains and penalties of perjury, on this Baw day of OetebexNovember,\n2026. \\ r\nAndtew Miltenberg, Esq-\n18\n","thumbnailUrl":"https://lucycraig.blog/media/760/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/760"}