Opinion
March 6, 1995
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The plaintiff, an employee of the County of Nassau, contends that he was assigned to "out-of-title work" in violation of Civil Service Law § 61 (2). The plaintiff moved for a preliminary injunction precluding his employer from continuing to assign him to out-of-title work. In addition, his motion papers sought "such other and further relief as this court deems just and proper". The court, without notice to the parties, converted the plaintiff's motion into a motion for summary judgment and granted him summary judgment. We now reverse.
Given the relief requested by the plaintiff the Supreme Court could, after adequate notice to the parties, have treated the motion for a preliminary injunction as a motion for summary judgment. "Requiring that * * * the parties be given notice that the court will consider [a motion] as a 3212 motion reduces the possibility of gamesmanship, while at the same time permitting the court to deal with the issue in the most efficient manner" (Rich v. Lefkovits, 56 N.Y.2d 276, 282; cf., CPLR 3211 [c]; Mihlovan v. Grozavu, 72 N.Y.2d 506; Guggenheimer v Ginzburg, 43 N.Y.2d 268; Four Seasons Hotels v. Vinnik, 127 A.D.2d 310).
Accordingly, the order is reversed and the matter is remitted to the Supreme Court for the purpose of providing the defendants with adequate notice of the court's intention to convert the plaintiff's motion into a motion for summary judgment, so as to permit the defendants an opportunity to lay bare their proof in opposition. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.