Opinion
July 3, 1986
Appeal from the Supreme Court, New York County (Alvin F. Klein, J.).
In their first cause of action, plaintiffs allege that their former attorney, defendant Allan Sloan, converted $100,000 given to him in escrow in connection with the purchase of real property. Plaintiffs commenced this action by order to show cause requesting a direction that defendant "return petitioners' [sic] $100,000 escrow money." Special Term characterized plaintiffs' application for what was essentially injunctive relief as a motion for partial summary judgment and granted plaintiffs partial summary judgment on their first cause of action.
Special Term improvidently converted plaintiffs' application into a motion for summary judgment without notice to the defendants, and prior to joinder of issue. (Milk v. Gottschalk, 29 A.D.2d 698; see also, e.g., Miller v. Nationwide Mut. Fire Ins. Co., 92 A.D.2d 723.) Insofar as the court below granted plaintiffs partial summary judgment on the grounds that defendants failed to meet their burden of opposing a motion for summary judgment, a motion they were not on notice to oppose, we reverse the order.
However, since on this record plaintiffs have demonstrated a clear right to the relief, we grant plaintiffs the injunctive relief they originally sought and direct defendants-appellants to deposit $100,000 with the County Clerk, to prevent the dissipation of these funds pending trial.
We have examined the other points raised on this appeal and find them without merit.
Concur — Sullivan, J.P., Asch, Fein, Ellerin and Wallach, JJ.