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Judicial Vacancies Lead to Cases Set Aside in N.Y.

ALBANY, N.Y. (CN) - A case involving a bank's alleged aid to terrorists, and another stemming from a medical examiner's failure to return a teen's brain to his family following a car accident, were put on hold this week because of a shortage of judges at New York's highest court.

Jesse Shipley, 17, died in the crash on Staten Island in January 2005. He was buried following an autopsy.

Two months later, however, students from his high school saw his brain in a jar while on a field trip to the Staten Island medical examiner's office. That prompted a lawsuit against the city of New York that went before New York's Court of Appeals for oral argument Jan. 5.

On Tuesday, the court announced that the Shipley case would be set aside for re-argument in the future. Another case, alleging that the Bank of China financially aided terrorists in deadly bombings in Israel in 2005-2007, similarly was set aside.

Court spokesman Gary Spencer said the cases were pulled because the court needs four judges to render a decision, and with two vacancies on the seven-member court, a majority decision could not be guaranteed.

The Court of Appeals heard oral arguments on 24 cases in the session that ran Jan. 5 to 16, its website shows. Only the Shipley and Bank of China appeals were pulled.

Spencer said judges typically conference after oral arguments, and usually issue a decision in the next month's court session. He said there is no time limit on how soon a decision must be rendered.

Tuesday's decision on the Shipley and Bank of China cases gives no indication on when they may be reheard. Spencer said re-argument would be necessary to get new judges up to speed.

The Court of Appeals has been down one judge since October, when Gov. Andrew Cuomo decided not to reappoint Judge Victoria Graffeo, whose 14-year term expired. On Dec. 31, it lost a second, Judge Robert Smith, who retired after hitting the mandatory retirement age of 70.

Both judges went into private practice in the new year. Graffeo joined Harris Beach as a partner in its Albany office, where she heads the firm's Alternate Dispute Resolution Practice Group. Smith became a partner in Friedman Kaplan Seiler & Adelman in New York City, where he heads the appellate practice.

Cuomo nominated two appellate justices for the vacancies, Leslie Stein and Eugene Fahey. Both nominations must be approved by the state Senate.

After the Stein nomination in October, Sen. John Bonacic, chairman of the Senate Judiciary Committee, issued a statement saying he saw no problem with her confirmation. He expressed disappointment, though, that Cuomo did not name Graffeo to another term.

Bonacic likewise saw no issues with the Fahey nomination, made Jan. 15, according to published reports.

Stein serves as an associate justice in the Supreme Court Appellate Division's Third Department in Albany. Fahey is an associate justice in the Appellate Division's Fourth Department in Rochester.

Vincent Bonventre, a professor at Albany Law School who writes New York Court Watcher, an independent blog on state and federal appeals court, indicated that if Stein and Fahey are confirmed, they will create "the first 5-2 Democratic edge on the court in modern history."

He noted that under state judiciary law, the Senate has 30 days from nomination to take action on a governor's pick. That deadline was ignored in the case of Stein, he wrote, "without any legal consequence under the governing statute."

New York's 2015-16 legislative session got under way in earnest Wednesday with the release of Cuomo's State of the State address and executive budget.

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