(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 and contact tracing would prevent individuals with HIV infection from voluntarily cooperating with public health officials in curtailing AIDS. However true this may be, when contrasted with the current, dangerously critical level the epidemic has achieved, respondents’ position fails to "take cognizance of the interests of health and life of the people of the state” (Public Health Law § 206 [1] [a]). Appropriate recognition of this "public health concern of the highest order” (Ware v Valley Stream High School Dist., 75 NY2d 114, 128) would reveal *60what the Commissioner of Education took note of in denying an exemption from AIDS instruction to school children of a certain religious faith. " '[T]he AIDS crisis has reached epidemic proportions. Never in modern history has society been confronted with an infectious disease of greater magnitude. According to the State of New York’s 1989 inter-agency AIDS planning document, an estimated 90,500 New Yorkers will have been diagnosed with the AIDS virus by 1994. * * * [T]his human devastation will be accompanied by economic and political changes which will affect our social institutions, our educational practices and our health care systems’ ” (Ware v Valley Stream High School Dist., 150 AD2d 14, 20, mod 75 NY2d 114, supra).
A report contained in the record and issued by the Institute of Medicine, National Academy of Sciences states that "[b]y the end of 1991 there will have been a cumulative total of more than 270,000 cases of AIDS in the United States” and that although AIDS cases will continue to involve recognized high-risk groups "[n]ew AIDS cases in men and women acquired through heterosexual contact will increase from 1,100 in 1986 to almost 7,000 in 1991”. Even more alarmingly, the report states that ”[p]ediatric AIDS cases will increase almost 10-fold in the next five years, to more than 3,000 cumulative cases by the end of 1991” (Confronting AIDS: Directions for Public Health, Health Care and Research, at 8 [National Academy Press 1986]).
In our view, these factors far outweigh respondents’ concern, as stated by the majority, that "cooperation would be chilled by the threat of mandatory testing despite assurances of confidentiality”. "The ability of public health departments to identify persons exposed to HIV expeditiously through testing, reporting and partner notification can be critical to effective therapeutic intervention” (Gostin, The AIDS Litigation Project, J AMA, Apr. 11, 1990, at 1962). For communicable diseases, testing, reporting and notification are provided for in our Public Health Law. AIDS and HIV infection are communicable diseases (see, Matter of Doe v Coughlin, 71 NY2d 48, 60, cert denied 488 US 879; Matter of Health Ins. Assn. v Corcoran, 140 Misc 2d 255, 260, mod on other grounds 154 AD2d 61; Merritt, Communicable Disease and Constitutional Law: Controlling AIDS, 61 NYU L Rev 739 [1986]), the transmission and spread of which the State has a substantial interest in preventing (see, Matter of Doe v Coughlin, supra, at 57). Although the designation of HIV infection *61or AIDS as a communicable disease is a discretionary function of the Commissioner of Health, his refusal to so designate in view of clearly skyrocketing health concerns is arbitrary and capricious and further sidesteps an important concern voiced by petitioners, i.e., the physician’s right and responsibility to know if their patients are infected and to proceed accordingly. We would therefore reverse Supreme Court’s judgment and grant so much of the petition as seeks to require the Commissioner to designate AIDS as a communicable disease.
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.
Judgment affirmed, without costs.