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SOCY. OF SURGEONS v. AXELROD

157 A.D.2d 54 (1990)

In the Matter of New York State Society of Surgeons et al., Appellants, v. David M. Axelrod, as Commissioner of Health of The State of New York, et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 3, 1990

Attorney(s) appearing for the Case

Hinman, Straub, Pigors & Manning, P. C. (Bartley J. Costello, III, and Paula Fitz Battiste of counsel), for appellants.

Robert Abrams, Attorney-General (Evelyn M. Tenenbaum and Susan L. Watson of counsel), for respondents.

Winthrop, Stimson, Putnam & Roberts (Robert F. Bacigalupi, Wilfredo Fernandez, Susan J. Kohlmann and David G. Keyko of counsel); Lambda Legal Defense Education Fund, Inc. (David Barr and Thomas B. Stoddard of counsel); and New York Lawyers for Public Interest (Leslie Salzman of counsel), for Public Health Association of New York City and others, amici curiae.

WEISS and YESAWICH, JR., JJ., concur with HARVEY, J.; KANE, J. P., and MIKOLL, J., dissent and vote to reverse in an opinion by KANE, J. P.

HARVEY, J.

In February 1988 petitioners, four medical societies, requested that respondents, the Commissioner of Health and the Public Health Council, designate an infection with human immunodeficiency virus (hereinafter HIV infection) as a communicable disease and a sexually transmissible disease1 pursuant to Public Health Law § 225 (5) (h) and § 2311. To do so

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