IN RE: Almetta RIVERS (2008)

Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered September 6, 2007, which granted respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78 seeking to annul respondents' determination disqualifying petitioner from consideration for the position of sanitation worker, unanimously affirmed, without costs.

 Contrary to petitioner's contention, the court did not convert the cross motion to dismiss the petition for failure to state a cause of action into a motion for summary judgment without notice.   Rather, the court, pursuant to CPLR 7804(f), properly found that petitioner failed to state a legally cognizable cause of action that respondents acted arbitrarily, capriciously, or without a rational basis, where the record evidence establishes that the determination finding petitioner medically not qualified for the position of sanitation worker was rationally based upon the findings that she suffered from left ventricular hypertrophy and had elevated blood pressure.   When arriving at its determination, respondents were entitled to rely on the conclusions of respondent Department of Sanitation's medical director even in the face of conflicting opinions from petitioner's physicians (see McCabe v. Hoberman, 33 A.D.2d 547, 304 N.Y.S.2d 497 [1969];  Matter of Winnegar v. County of Suffolk, 13 A.D.3d 382, 785 N.Y.S.2d 524 [2004] ).