
    In the Matter of Almetta Rivers, Appellant, v New York City Department of Sanitation et al., Respondents.
    [854 NYS2d 64]
   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 AD2d 547 [1969]; Matter of Winnegar v County of Suffolk, 13 AD3d 382 [2004]). Concur—Tom, J.P., Friedman, Nardelli, Catterson and Moskowitz, JJ. [See 2007 NY Slip Op 32740(U).]  