New York State Society of Surgeons v. Axelrod

Kane, J. P.

(dissenting). We respectfully dissent. We do agree with the majority that the Public Health Law calls for the designation of a disease as communicable or sexually transmissible at the discretion of the Commissioner of Health (see, Public Health Law § 225 [5] [h]; § 2311). In our view, however, the Commissioner’s exercise of his discretion in refusing to designate AIDS a communicable disease is, in this instance, arbitrary, capricious and in contravention of both the record before us and the intent behind the relevant statutory law.

It is respondents’ position that mandatory testing…