RATNER v. STEINBERG

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.