Diane A. Lebedeff, an "acting" supreme court justice, was responsible at one time for 60% of the 200-odd guardianships created in NY County every year. She is an elder-law expert in her own right, as chair of the NY County Lawyers' Association Committee on Elder Law and drafter of their "Report on Fiduciary Issues: Recommendations From a Guardianship Perspective." Would you assume she knew and understood the law in that special area?
Court records show the following violations of law:
1. She conducted the guardian proceedings without statutory jurisdiction (necessary papers were not filed or served);
2. She failed to appoint counsel for the "alleged" incapacitated person (AIP), who was brought into court in a wheelchair, under sedation;
3. She failed to reject the court evaluator's report, which did not meet even minimum statutory standards (her chosen evaluator was a real-estate lawyer, who was untrained for guardianship work);
4. She failed to hold any evidentiary hearing: no witnesses were produced and no testimony was taken;
5. She failed to make findings of incapacitation, required by statute, or to enter any judgment of incapacitation, but appointed a guardian nevertheless.
6. She failed to comply with the statutes - Mental Hygiene Law Section 81 - promulgated to protect the AIP;
7. She completely bypassed the services of the Guardian Support Unit and failed to review the guardian's initial report;
8. She failed to monitor and supervise the guardian's activities; leaving him free to loot the personal property of the AIP and disburse estate assets without her knowledge or consent;
9. She ignored complaints of guardian misconduct, including his admission that (1) he removed the AIP's Will and other contents from her safety deposit box before his appointment, using what was claimed to be a power of attorney, filed no inventory, and kept the Will in his office in NJ; (2) that prior to his appointment, he forged the AIP's signature on checks;
10. Finally, after a misconduct hearing in which the referee recommended that the guardian lose his commissions based on misconduct,Lebedeff instead awarded almost $11,000 of requested commissions, and then gratuitously added an unrequested (and unauthorized) additional payment of $20,000 for "exacting and impressive" work. (One must wonder what the purpose of that bonus was.)
11. She awarded the Referee over $23,000 for a two-day "hearing" which never took place, inasmuch as she had ordered that there be NO hearing, but that the Referee should act on papers to be submitted by the parties. (The NYS statutes allow a Referee only $50 per day, unless agreed otherwise by the parties.)
(Matter of Rosenberg, Supreme Court, NY County, Index No. 500237/93)
When it became known that Lebedeff was engaging in misconduct and rubberstamping unsupported and excessive "legal" fee bills, she was removed from her guardianship duties (NYLJ 2/24/01). In one case, NBC-TV's investigative reporter, Tim Minton, showed how Lebedeff had approved a lawyer's fee bill for a 42-hour day! (Guarding the Guardians, April 2001). Several of her appointees in that case were also members of the NYCLA Elder-Law Committee which she chaired.
As a result of complaints to the NYS Commission on Judicial Conduct, she was twice censured for misusing her fiduciary appointment power and other misconduct.
The first censure involved "failing to pay her accountant for tax preparation services over the same period that she was appointing the accountant as a fiduciary and approving more than $21,000 in compensation for her...creating an appearance of a quid pro quo - a serious breach of judicial ethics." www.scjc.state.ny.us/Determinations/L/Lebedeff.htm
The second censure involved her presiding over a personal injury case (without disclosing to the defendants that the plaintiff was a personal friend) in which ; she excused the defense attorneys so that she could engage in "gossip" with the plaintiff in her robing room or chambers, on five occasions. While the case was pending, she gave her friend a lucrative guardianship appointment, and a total of $84,000 in fee awards.
Following publication of the second censure, Lebedeff was demoted back to the lower civil court to which she had been originally elected. Happily for any AIPs, she can no longer hear guardian cases. Court records show no fiduciary appointments having been made by her since her demotion.