In a widely watched case, the New York Appellate Division has rejected a claim by a law professor at Cardozo Law School in New York that days he worked at home in Connecticut during the COVID-19 lockdown should not be treated as New York workdays. Edward A. Zelinsky et al. v. Comm’r of Taxation & Fin., et al., CV-25-1156 (N.Y. App. Div. July 2, 2026). In doing so, the Court rejected a constitutional challenge to the Tax Department’s application of the New York “convenience of the employer” rule, the same outcome reached by the New York Court of Appeals on Professor Zelinsky’s constitutional challenge nearly 25 years ago in Matter of Zelinsky v. Tax Appeals Trib., 1 NY 3d 85 (2003), cert denied 541 US 1009 (2004) (“Zelinsky I”).

Background: Under the long-standing New York “convenience of the employer” rule, where a nonresident employee performs services both within and outside New York, the employee’s out-of-state workdays are treated as New York workdays—requiring inclusion in the numerator of the “New York source income” fraction—unless the employee “of necessity, as distinguished from convenience” is obligated to work outside the State. 20 NYCRR 132.18(a). The rule has become increasingly controversial as remote work has proliferated, particularly since the outbreak of COVID-19.

Professor Zelinsky previously contested the constitutionality of the rule at the Court of Appeals, New York’s highest court, claiming that treating the days he worked from his home in Connecticut (including his sabbatical leave) as New York workdays in 1994 and 1995 violated the Commerce and Due Process Clauses of the U.S. Constitution. In 2003, a unanimous Court of Appeals ruled against his constitutional challenge, and the U.S. Supreme Court denied certiorari. It was generally thought that this ended the controversy and left it to the New York Legislature to address.

Current Case: Fast forward to the years 2019 and 2020. The onset of COVID-19 resulted in an Executive Order by former Governor Andrew Cuomo issued on March 20, 2020, directing all nonessential businesses in the State to eliminate their in-person workforce and to implement telecommuting and remote work “to the maximum extent possible.” In compliance with the order, Cardozo shut its doors to all in-person activity and thereafter Zelinsky taught and otherwise worked entirely from his Connecticut home for the remainder of 2020.

Professor Zelinsky paid New York tax and then filed a refund claim for 2020, asserting that the work-from-home mandate eroded the analysis and holding of Zelinsky I and that he was forced to work from home out of the necessity of his employer.

Although given far less attention than his 2020 claim, Zelinsky also sought refunds for the 2019 tax year, for days he worked from home, arguing that Zelinsky I was no longer controlling law under more recent U.S. Supreme Court precedent.

The Decision: The Appellate Division, Third Department, held that Professor Zelinsky’s employer did not require him to work in Connecticut even though he was prohibited from working at the school under the Executive Order and, therefore, the income from his remote work was properly sourced to New York. According to the Court, the law school “was indifferent” as to where Zelinsky remotely taught from. It concluded that Zelinsky did not work in Connecticut due to “employer necessity,” and therefore, the “convenience of the employer” rule sourced his income to New York.

The Court was also unpersuaded by Zelinsky’s constitutional argument, holding that Zelinsky’s remote work from home did not implicate the dormant Commerce Clause and that, even if it did, the entirety of his salary was derived from his New York employment and the tax bore a rational relationship to New York.

The Court also found that the two U.S. Supreme Court decisions cited by Zelinsky—MeadWestvaco Corp. v. Illinois (2008) (rejecting a state’s ability to tax a business’ capital gain from a nonunitary business) and Comptroller of Treasury of Md. v. Wynne (2015) (involving the imposition of state personal income tax on an individual’s income from his S corporation without affording a full state tax credit)—were factually distinguishable and did not erode Zelinsky I.

The Court gave short shrift to Zelinsky’s constitutional claim for the 2019 tax year (which did not involve the COVID-19 lockdown) noting that his pre-pandemic work was materially indistinguishable from his work in 1994 and 1995 and was lawfully taxable for the same reasons explained in Zelinsky I.

Observations: It was perhaps a stretch to expect the Third Department to disregard the Zelinsky I decision regarding the constitutionality of the “convenience of the employer” rule, and it is questionable whether the Court of Appeals will find reason to reconsider its earlier decision. However, the Third Department’s interpretation limiting non-New York treatment for non-New York workdays unless the employer requires the employee to perform the services at a particular site outside the State—which is not a condition under the regulation—may give the Court of Appeals grounds to rule favorably for Zelinsky for the 2020 year without relegating Zelinsky I to the dust pile.

The Court acknowledged that the growth of remote work and the application of the “convenience of the employer” rule remain subjects of ongoing debate but viewed them as matters for the New York Legislature and the Tax Department to address. To date, however, neither has shown any inclination to mitigate the rule’s harsher effects.