Last week, Proskauer obtained a critical victory for our client—a grandmother acting as guardian for her two learning-disabled grandchildren—in an appeal to the Appellate Division, First Department.  The appeal challenged a lower court holding that an amendment to New York’s Kinship Guardianship Assistance Program (“KinGAP”) did not apply retroactively to beneficiaries, such as our client’s grandchildren, who entered the program before the amendment took effect.

KinGAP, established in 2011, enables foster-care children for whom returning home or adoption are not available options, to achieve a permanent placement with a guardian relative.  To subsidize the costs of caregiving for guardians of limited means such as our client, KinGAP provides monthly assistance payments pursuant to a statutorily prescribed form of agreement between the guardian and a local department of social services.

When our client entered into a KinGAP agreement in 2014, New York Social Services Law § 458-b(7)(a) made the duration of the subsidy dependent on whether the agreement was entered into before or after the child’s 16th birthday.  Continued assistance payments were available beyond the age of 18 only if the agreement commenced after the child was already 16 years of age.  Section 458-b(7)(a) thus drew a distinction between foster parents and adoptive parents on the one hand and guardians on the other because foster and adoptive children were entitled to assistance payments until they turned 21 notwithstanding their age at the time their subsidy agreements were commenced.

In 2017, the New York State Legislature acted to “rectify [this] anomaly” by amending the law to provide for guardianship assistance payments to continue until a child reaches the age of 21, regardless of the child’s age when the agreement first became effective.

Following the amendment, the Bronx Family Court considered our client’s pro se petition to extend assistance payments for her grandsons until they turned 21.  While the court recognized that the amendment was remedial in nature—ordinarily warranting retroactive application—it nonetheless held that it could not apply the statute retroactively for the benefit of our client’s grandchildren because such application supposedly would impinge on purported vested contractual rights of the state agency administering KinGAP.

In a unanimous decision, the First Department reversed the family court’s order denying our client extended assistance payments.  Relying on legislative history, the First Department explained that the amendment was specifically intended to rectify an anomaly in the original statute that had arbitrarily denied extended financial support to a class of children, including the our client’s grandchildren.  Thus, even if the amendment impaired the state agency’s vested contractual rights, the impairment was “reasonable and necessary to accomplish a legitimate public purpose,” warranting retroactive application.  “Holding otherwise,” the court explained, would “lead to an absurd legal conclusion” because “the disparity created by the original law” would continue, and the intended purpose of the amendment would be thwarted.  Accordingly, the First Department granted our client’s petition to extend the much-needed assistance payments.

I was honored to argue this case on behalf of our client before the First Department, and am grateful to Proskauer partner Steven Obus for his thoughtful guidance.

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Photo of Lucas Kowalczyk Lucas Kowalczyk

Lucas Kowalczyk is an associate in the Litigation Department and a member of the firm’s nationally recognized Appellate Practice Group, which has been named to the National Law Journal’s Appellate Hot List. Lucas has authored dozens of briefs in federal and state appellate…

Lucas Kowalczyk is an associate in the Litigation Department and a member of the firm’s nationally recognized Appellate Practice Group, which has been named to the National Law Journal’s Appellate Hot List. Lucas has authored dozens of briefs in federal and state appellate and trial courts, and at the certiorari and merits stages in the Supreme Court of the United States, and has argued cases in state and federal appellate courts. He litigates cases in a wide range of subject areas, including antitrust, bankruptcy, healthcare, labor, employment, and constitutional law. He also co-authored chapters of the treatise Principles of Appellate Litigation: A Guide to Modern Practice, published in 2021 by PLI and revised annually.

Among his notable appellate representations, Lucas helped obtain a critical victory at the U.S. Supreme Court for the Financial Oversight and Management Board for Puerto Rico in an appeal concerning the Board’s sovereign immunity. Lucas also prevailed at the First Circuit for the Board in four related appeals seeking to overturn the $18-billion plan of adjustment for the Sales Tax Financing Corporation, a critical component of Puerto Rico’s historic fiscal recovery.

Lucas is also a member of the firm’s White Collar Defense and Investigations Group, focusing on government and internal investigations, and criminal and regulatory matters. Among other representations, Lucas helped secure a full release of nearly $20 million worth of interest in assets seized from the firm’s client by the U.S. Department of Justice.

Finally, Lucas is a member of the firm’s Commercial Litigation Practice, and has successfully represented clients in high-stakes contractual disputes involving financial services, life sciences, consumer goods, telecommunications, and other industries in trial courts and arbitrations in a number of jurisdictions.

Lucas also maintains a diverse pro bono practice and has represented indigent clients in immigration, family, and appellate courts, and in death-penalty proceedings. Among his notable representations, Lucas prevailed in a Second Circuit appeal addressing the showing the government must make to justify the continued detention of a noncitizen in removal proceedings. In 2019, Lucas received the Legal Aid Society’s Pro Bono Publico Award and Proskauer’s Golden Gavel Award for obtaining a critical victory for his client—an indigent grandmother acting as guardian for her two learning-disabled grandchildren—in an appeal, argued by Lucas, to the New York State Appellate Division, First Department. The court held that an amendment to New York’s Subsidized Kinship Guardian Program applied retroactively and required an award of benefits to the client’s grandchildren.

Lucas is a graduate of the National Trial Advocacy College.