{"@context":"https://schema.org","@type":"DigitalDocument","altText":"Public administrative PDF \u2014 case-20f2fbf9d925 entry #26","alternateName":"needs-review-4831ef1b15-911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_AFFIRMATION_26.pdf","caption":"","contentUrl":"https://lucycraig.blog/media/757/raw","datePublished":"2026-11-05T23:40:02+00:00","description":"","encodingFormat":"application/pdf","identifier":"757","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/757/index.json","markdown":"https://lucycraig.blog/media/757/index.md"},"name":"Public administrative PDF \u2014 case-20f2fbf9d925 entry #26","ocrStatus":"ready","ocrText":"--- Page 1 ---\n1 \n \nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \n \nIn the Matter of the Application of  \nGILLIO LOPES, \n \n                                                      Petitioner, \n \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n \n \n                                     -against- \n \n \n \n \n \n \n \n \n \nKATHY HOCHUL, in her official capacity as \nGovernor of the State of New York, and \nLETITIA JAMES, in her official capacity as \nAttorney General of the State of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.: 911974-26 \n \n \n \n             \n \nAFFIRMATION IN SUPPORT OF MOTION FOR LEAVE TO AMEND  \nVERIFIED PETITION AND JOIN ADDITIONAL PARTIES \n \nAndrew T. Miltenberg, an attorney duly admitted to practice before the Courts of the \nState of New York, affirms, pursuant to CPLR \u00a7 2106(a) and under penalty of perjury, that the \nfollowing is true and correct: \nI. \nBackground \n1. \nI am a partner at the law firm of Nesenoff & Miltenberg, LLP, attorneys for \nPetitioner Gillio Lopes (\u201cPetitioner\u201d), in the instant matter. \n2. \nIn that capacity, I am fully familiar with the facts and issues set forth in this \nAffirmation, including communications with counsel concerning joinder, which is being submitted \nin support of Petitioner\u2019s Motion for Leave to Amend his Verified Petition. \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n1 of 6\n\n--- Page 2 ---\n2 \n \n3. \nAs an initial matter, Petitioner brings to the Court\u2019s attention a recent development \nrelevant to this proceeding; namely, an announcement by Attorney General James on November \n4, 2026, indicating that she has appointed Jacqueline Kelly, former Civil Rights Unit Chief for the \nCriminal Division in the U.S. Attorney\u2019s Office for the Southern District of New York to \u201clead a \nfair and comprehensive criminal investigation into an alleged sexual assault on Cornell \nUniversity\u2019s campus in October 2024.\u201d See https://ag.ny.gov/press-release/2026/attorney-\ngeneral-james-appoints-veteran-prosecutor-outside-counsel-cornell \n4. \nImportantly, this November 4 appointment does not eliminate Petitioner\u2019s \nunderlying concerns about Attorney James conducting a fair investigation.  \n5. \nThe Attorney General\u2019s press release contained a statement from Ms. Kelly which \nstated in part, \u201cI thank Attorney General James for entrusting me to lead this investigation with \nher office.\u201d  (Emphasis added).  \n6. \nFurther, the press release made reference to \u201cKelly and her team\u201d but never \nidentifies the individuals on Ms. Kelly\u2019s team. Is her team composed of members of Attorney \nGeneral James\u2019 staff, whom the Attorney General has herself selected?  \n7. \nAdditionally, the announcement does not state that Attorney General James has \nin fact recused herself, relinquished supervisory authority, surrendered charging authority, or \nagreed not to participate in decisions concerning Petitioner. Thus, while the appointment of \nMs. Kelly changes the face of the investigation, it does not establish any change in ultimate \nauthority.  \n8. \nInstead, while Ms. Kelly will \u201clead\u201d the investigation, her team will report \ndirectly to the OAG. \n9. \nWhat does \u201creport to James\u201d mean? Does James: \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n2 of 6\n\n--- Page 3 ---\n3 \n \n\u2022 \nreceive Kelly\u2019s factual assessments? \n\u2022 \nreceive credibility determinations? \n\u2022 \nreceive charging recommendations? \n\u2022 \napprove or reject charges? \n\u2022 \napprove grand-jury presentation? \n\u2022 \ndirect further investigation? \n\u2022 \nhave authority to countermand Kelly? \n\u2022 \nhave authority to remove Kelly? \n\u2022 \nparticipate in strategy meetings? \n\u2022 \ndecide whether the investigation ends? \n10. \nDespite the appointment of experienced outside counsel, Petitioner maintains \nthat the narrow relief previously requested is feasible and warranted: continuation of the \ninvestigation under a qualified designee without Attorney General James\u2019s personal \nparticipation, supervision, or control.  \n11. \nShould Your Honor deem necessary, Petitioner would appreciate the \nopportunity to submit a supplemental filing regarding this new development.    \n12. \nPetitioner seeks leave under CPLR 401 and 3025(b) to file and serve the \nproposed Amended Verified Petition. \n13. \nMy office filed the Petition on behalf of our client Gillio Lopes on October 7, \n2026. \n14. \nThrough that Petition, brought pursuant to Article 78, Mr. Lopes requested that \nGovernor Kathleen Hochul\u2019s appointment of New York Attorney General Letitia James to \nserve as Special Prosecutor in the case of Cornell male students alleged to have engaged in, \nor had knowledge of, the sexual assault of a female student (\u201cJane Doe\u201d) be voided. \n15. \nSpecifically, three days prior to Attorney General James\u2019s appointment as \nSpecial Prosecutor in the matter, on September 28, 2026, at 6:13pm, she posted to the Attorney \nGeneral\u2019s official social media account on X: \u201cWhat this young woman has been forced to \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n3 of 6\n\n--- Page 4 ---\n4 \n \nendure is horrific and unacceptable. I\u2019m holding her in my heart and in my prayers. To her, \nand to all survivors: you\u2019re not alone. We stand with you.\u201d  \n16. \nIn light of the foregoing statement, it is apparent that Attorney General James \nis not, and cannot, remain neutral in investigating this matter, and there is thus a substantial \nlikelihood of prejudice to all of the individually named Defendants in the civil case, if \nAttorney General James is permitted to remain involved in the investigation in any capacity. \n17. \nI, together with my partner Stuart Bernstein, Esq. appeared before this Court \nfor oral argument on Petitioner\u2019s Article 78 proceeding on October 29, 2026. \n18. \nAt the October 29, 2026, oral argument, the Court raised whether the six other \ndefendants individually named in the underlying civil action should be joined as parties to this \nproceeding. The Court questioned how a ruling concerning the Attorney General\u2019s \nappointment would affect those individuals and raised the possibility of inconsistent rulings. \nConsequently, the Court permitted a joinder application or submission by November 5, 2026. \n(Exhibit 1, Hearing Tr. 12:5\u201320, 13:3\u201325, 41:4\u201316, 42:13\u201343:3.) \nII. \nCounsel\u2019s Outreach and the Individuals\u2019 Positions Regarding Joinder   \n19. \nFollowing oral argument, Petitioner\u2019s counsel contacted the other individuals \nsubject to the investigation at issue, through their counsel for those who are currently \nrepresented, to ascertain their positions on joining this proceeding. This communication was \nmade via email correspondence dated October 30, 2026 (Exhibit 2).  \n20. \nMy colleagues Stuart Bernstein, Tara Davis, Kirsten Roy, and I met with \ncounsel for Defendants via Zoom on November 4, 2026, to discuss this submission and each \nof the attorneys\u2019 respective positions.  \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n4 of 6\n\n--- Page 5 ---\n5 \n \n21. \nThe positions of each of the individually named Defendants as of November 5, \n2026, are set forth below. \n22. \nDiego Sarabia. Through his counsel Craig Knox and Alishah Bhimani of \nHacker Murphy, LLP, Mr. Sarabia has confirmed that he will join the proceeding, in support \nof joinder and removal of AG James. \n23. \nScott Kretzschmar. Through his counsel Alan Sash of Bushell, Sovak, Kane & \nSash LLP, Mr. Kretzschmar has confirmed that he will join the proceeding, in support of \njoinder and removal of AG James. \n24. \nWinston Lee. Through his counsel Teny Geragos of Agnifilo Intrater, Mr. Lee \nhas confirmed that he will join the proceeding, in support of joinder and removal of AG James. \n25. \nScott Norris. Through his counsel Mark Cuccaro, Alexandra Conlon, and \nRaphael Friedman of Sher Tremonte LLP, Mr. Norris has confirmed that he wishes to join the \nproceeding, and to reserve the right to participate, if appropriate. \n26. \nMatthew Ingalls. Mr. Ingalls is not currently represented in the pending civil \nmatter, and my office was not able to locate contact information for him. Thus, as of the time \nof this filing, Mr. Ingalls has not responded or provided his position.  \n27. \nJohnathan Newell. Mr. Newell is not currently represented in the pending civil \nmatter. As such, my office reached out to Mr. Newell by email on October 30, 2026, to obtain \nhis position regarding the request for relief made in Mr. Lopes\u2019s petition. As of the time of \nthis filing, Mr. Newell has not responded or provided his position.  \n \n \n \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n5 of 6\n\n--- Page 6 ---\nilr.\nPronosed Amenr\u00ecment and Relief Reouested\n28. Petitioner respectfully requests that he be permitted to submit a Proposed\nAmended Verified Petition, which includes as co-petitioners, the following individuals: Diego\nSarabia, Scott Kretzschmar, Winston Lee, and Scott Norris. The proposed amended pleading\nis attached as Exhibit 3.\n29. \nThe co-Petitioners join in the requested relief, declaring that:\na. Respondent Governor Hochul's appointment of Attorney General James as\nSpecial Prosecutor in the investigation of the Cornell matter is voided; and\nb. Respondent Governor Hochul shall appoint a Special Prosecutor who is free\nfrom actual or perceived conflicts of interest or bias against Petitioner and the\nother individually named Defendants in the civil action.\n30. Petitioner respectfully requests that the Court direct notice under CPLR 7802(d)\nto the remaining individuals and give them an opportunity to state their positions. If the Court\ndetermines that any other individual is a necessary party and subject to its jurisdiction,\nPetitioner respectfully requests an order directing joinder and service under CPLR 1001.\nI affirm this 4th day of November 2026, under the penalties of perjury under the laws of\nNew York, which may include a fine or imprisonment, that the foregoing is true, except as to\nmatters alleged on information and belief and as to those matters, I believe it to be true, and I\nunderstand that this document may be filed in an action or proceeding in a court of law.\nDated:New York, New York\nNovember 5,2026\nAn\nBy:\n6\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n6 of 6","text":"--- Page 1 ---\n1 \n \nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \n \nIn the Matter of the Application of  \nGILLIO LOPES, \n \n                                                      Petitioner, \n \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n \n \n                                     -against- \n \n \n \n \n \n \n \n \n \nKATHY HOCHUL, in her official capacity as \nGovernor of the State of New York, and \nLETITIA JAMES, in her official capacity as \nAttorney General of the State of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.: 911974-26 \n \n \n \n             \n \nAFFIRMATION IN SUPPORT OF MOTION FOR LEAVE TO AMEND  \nVERIFIED PETITION AND JOIN ADDITIONAL PARTIES \n \nAndrew T. Miltenberg, an attorney duly admitted to practice before the Courts of the \nState of New York, affirms, pursuant to CPLR \u00a7 2106(a) and under penalty of perjury, that the \nfollowing is true and correct: \nI. \nBackground \n1. \nI am a partner at the law firm of Nesenoff & Miltenberg, LLP, attorneys for \nPetitioner Gillio Lopes (\u201cPetitioner\u201d), in the instant matter. \n2. \nIn that capacity, I am fully familiar with the facts and issues set forth in this \nAffirmation, including communications with counsel concerning joinder, which is being submitted \nin support of Petitioner\u2019s Motion for Leave to Amend his Verified Petition. \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n1 of 6\n\n--- Page 2 ---\n2 \n \n3. \nAs an initial matter, Petitioner brings to the Court\u2019s attention a recent development \nrelevant to this proceeding; namely, an announcement by Attorney General James on November \n4, 2026, indicating that she has appointed Jacqueline Kelly, former Civil Rights Unit Chief for the \nCriminal Division in the U.S. Attorney\u2019s Office for the Southern District of New York to \u201clead a \nfair and comprehensive criminal investigation into an alleged sexual assault on Cornell \nUniversity\u2019s campus in October 2024.\u201d See https://ag.ny.gov/press-release/2026/attorney-\ngeneral-james-appoints-veteran-prosecutor-outside-counsel-cornell \n4. \nImportantly, this November 4 appointment does not eliminate Petitioner\u2019s \nunderlying concerns about Attorney James conducting a fair investigation.  \n5. \nThe Attorney General\u2019s press release contained a statement from Ms. Kelly which \nstated in part, \u201cI thank Attorney General James for entrusting me to lead this investigation with \nher office.\u201d  (Emphasis added).  \n6. \nFurther, the press release made reference to \u201cKelly and her team\u201d but never \nidentifies the individuals on Ms. Kelly\u2019s team. Is her team composed of members of Attorney \nGeneral James\u2019 staff, whom the Attorney General has herself selected?  \n7. \nAdditionally, the announcement does not state that Attorney General James has \nin fact recused herself, relinquished supervisory authority, surrendered charging authority, or \nagreed not to participate in decisions concerning Petitioner. Thus, while the appointment of \nMs. Kelly changes the face of the investigation, it does not establish any change in ultimate \nauthority.  \n8. \nInstead, while Ms. Kelly will \u201clead\u201d the investigation, her team will report \ndirectly to the OAG. \n9. \nWhat does \u201creport to James\u201d mean? Does James: \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n2 of 6\n\n--- Page 3 ---\n3 \n \n\u2022 \nreceive Kelly\u2019s factual assessments? \n\u2022 \nreceive credibility determinations? \n\u2022 \nreceive charging recommendations? \n\u2022 \napprove or reject charges? \n\u2022 \napprove grand-jury presentation? \n\u2022 \ndirect further investigation? \n\u2022 \nhave authority to countermand Kelly? \n\u2022 \nhave authority to remove Kelly? \n\u2022 \nparticipate in strategy meetings? \n\u2022 \ndecide whether the investigation ends? \n10. \nDespite the appointment of experienced outside counsel, Petitioner maintains \nthat the narrow relief previously requested is feasible and warranted: continuation of the \ninvestigation under a qualified designee without Attorney General James\u2019s personal \nparticipation, supervision, or control.  \n11. \nShould Your Honor deem necessary, Petitioner would appreciate the \nopportunity to submit a supplemental filing regarding this new development.    \n12. \nPetitioner seeks leave under CPLR 401 and 3025(b) to file and serve the \nproposed Amended Verified Petition. \n13. \nMy office filed the Petition on behalf of our client Gillio Lopes on October 7, \n2026. \n14. \nThrough that Petition, brought pursuant to Article 78, Mr. Lopes requested that \nGovernor Kathleen Hochul\u2019s appointment of New York Attorney General Letitia James to \nserve as Special Prosecutor in the case of Cornell male students alleged to have engaged in, \nor had knowledge of, the sexual assault of a female student (\u201cJane Doe\u201d) be voided. \n15. \nSpecifically, three days prior to Attorney General James\u2019s appointment as \nSpecial Prosecutor in the matter, on September 28, 2026, at 6:13pm, she posted to the Attorney \nGeneral\u2019s official social media account on X: \u201cWhat this young woman has been forced to \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n3 of 6\n\n--- Page 4 ---\n4 \n \nendure is horrific and unacceptable. I\u2019m holding her in my heart and in my prayers. To her, \nand to all survivors: you\u2019re not alone. We stand with you.\u201d  \n16. \nIn light of the foregoing statement, it is apparent that Attorney General James \nis not, and cannot, remain neutral in investigating this matter, and there is thus a substantial \nlikelihood of prejudice to all of the individually named Defendants in the civil case, if \nAttorney General James is permitted to remain involved in the investigation in any capacity. \n17. \nI, together with my partner Stuart Bernstein, Esq. appeared before this Court \nfor oral argument on Petitioner\u2019s Article 78 proceeding on October 29, 2026. \n18. \nAt the October 29, 2026, oral argument, the Court raised whether the six other \ndefendants individually named in the underlying civil action should be joined as parties to this \nproceeding. The Court questioned how a ruling concerning the Attorney General\u2019s \nappointment would affect those individuals and raised the possibility of inconsistent rulings. \nConsequently, the Court permitted a joinder application or submission by November 5, 2026. \n(Exhibit 1, Hearing Tr. 12:5\u201320, 13:3\u201325, 41:4\u201316, 42:13\u201343:3.) \nII. \nCounsel\u2019s Outreach and the Individuals\u2019 Positions Regarding Joinder   \n19. \nFollowing oral argument, Petitioner\u2019s counsel contacted the other individuals \nsubject to the investigation at issue, through their counsel for those who are currently \nrepresented, to ascertain their positions on joining this proceeding. This communication was \nmade via email correspondence dated October 30, 2026 (Exhibit 2).  \n20. \nMy colleagues Stuart Bernstein, Tara Davis, Kirsten Roy, and I met with \ncounsel for Defendants via Zoom on November 4, 2026, to discuss this submission and each \nof the attorneys\u2019 respective positions.  \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n4 of 6\n\n--- Page 5 ---\n5 \n \n21. \nThe positions of each of the individually named Defendants as of November 5, \n2026, are set forth below. \n22. \nDiego Sarabia. Through his counsel Craig Knox and Alishah Bhimani of \nHacker Murphy, LLP, Mr. Sarabia has confirmed that he will join the proceeding, in support \nof joinder and removal of AG James. \n23. \nScott Kretzschmar. Through his counsel Alan Sash of Bushell, Sovak, Kane & \nSash LLP, Mr. Kretzschmar has confirmed that he will join the proceeding, in support of \njoinder and removal of AG James. \n24. \nWinston Lee. Through his counsel Teny Geragos of Agnifilo Intrater, Mr. Lee \nhas confirmed that he will join the proceeding, in support of joinder and removal of AG James. \n25. \nScott Norris. Through his counsel Mark Cuccaro, Alexandra Conlon, and \nRaphael Friedman of Sher Tremonte LLP, Mr. Norris has confirmed that he wishes to join the \nproceeding, and to reserve the right to participate, if appropriate. \n26. \nMatthew Ingalls. Mr. Ingalls is not currently represented in the pending civil \nmatter, and my office was not able to locate contact information for him. Thus, as of the time \nof this filing, Mr. Ingalls has not responded or provided his position.  \n27. \nJohnathan Newell. Mr. Newell is not currently represented in the pending civil \nmatter. As such, my office reached out to Mr. Newell by email on October 30, 2026, to obtain \nhis position regarding the request for relief made in Mr. Lopes\u2019s petition. As of the time of \nthis filing, Mr. Newell has not responded or provided his position.  \n \n \n \nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n5 of 6\n\n--- Page 6 ---\nilr.\nPronosed Amenr\u00ecment and Relief Reouested\n28. Petitioner respectfully requests that he be permitted to submit a Proposed\nAmended Verified Petition, which includes as co-petitioners, the following individuals: Diego\nSarabia, Scott Kretzschmar, Winston Lee, and Scott Norris. The proposed amended pleading\nis attached as Exhibit 3.\n29. \nThe co-Petitioners join in the requested relief, declaring that:\na. Respondent Governor Hochul's appointment of Attorney General James as\nSpecial Prosecutor in the investigation of the Cornell matter is voided; and\nb. Respondent Governor Hochul shall appoint a Special Prosecutor who is free\nfrom actual or perceived conflicts of interest or bias against Petitioner and the\nother individually named Defendants in the civil action.\n30. Petitioner respectfully requests that the Court direct notice under CPLR 7802(d)\nto the remaining individuals and give them an opportunity to state their positions. If the Court\ndetermines that any other individual is a necessary party and subject to its jurisdiction,\nPetitioner respectfully requests an order directing joinder and service under CPLR 1001.\nI affirm this 4th day of November 2026, under the penalties of perjury under the laws of\nNew York, which may include a fine or imprisonment, that the foregoing is true, except as to\nmatters alleged on information and belief and as to those matters, I believe it to be true, and I\nunderstand that this document may be filed in an action or proceeding in a court of law.\nDated:New York, New York\nNovember 5,2026\nAn\nBy:\n6\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 26\nRECEIVED NYSCEF: 11/05/2026\n6 of 6","thumbnailUrl":"https://lucycraig.blog/media/757/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/757"}