Opinion
March 29, 1999
Appeal from the order of the Supreme Court, Nassau County (Carter, J.).
Ordered that the order is reversed insofar as appealed from, with costs, and the complaint is reinstated.
It is well settled that "a motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 272). However, this power does not extend to an evaluation of conflicting evidence ( see, Six Nations Apt. Hous. Fund Dev. Co. v. Six Nations Props., 175 A.D.2d 567), and if a complaint states a cause of action, the court may not dismiss it on a motion for a preliminary injunction ( see, Chiarolanza v. Phelps, 251 A.D.2d 1038). Moreover, the court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording the parties an opportunity to lay bare their proof ( see, Guggenheimer v. Ginzburg, supra; Farrell v. Kiernan, 213 A.D.2d 373; EDP Hosp. Computer Sys. v. Bronx-Lebanon Hosp. Ctr., 212 A.D.2d 569). Here, the complaint is sufficient to state a cause of action, and the Supreme Court failed to give the parties notice that it was, in effect, converting the motion for a preliminary injunction into one for summary judgment. Accordingly, under the circumstances of this case, the court erred in dismissing the complaint ( see, Guggenheimer v. Ginzburg, supra; Farrell v. Kiernan, supra; EDP Hosp. Computer Sys. v. Bronx-Lebanon Hosp. Ctr., supra; cf., Bero v. Bero, 143 A.D.2d 866).
S. Miller, J. P., Santucci, Friedmann and Florio, JJ., concur.