Grand Aerie of Fraternal Order of Eagles v Mostrando, 2012 NY Slip Op 03139 (2nd Dept., 2012)
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 NY2d 268, 272). However, this power does not extend to an evaluation of conflicting evidence (see Livas v Mitzner, 303 AD2d 381, 382; Ratner v Steinberg, 259 AD2d 744). Accordingly, the motion 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 them an opportunity to lay bare their proof (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656, 657; 68 Burns New Holding, Inc. v Burns St. Owners Corp., 18 AD3d 857). Here, there is no indication in the record that the Supreme Court provided notice to the parties that the motion and cross motion for preliminary injunctive relief would be treated as a motion and cross motion for summary judgment, or that the parties agreed to chart a summary judgment course (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d 1220, 1221; Teri-Nichols Indus. Food Merchants, LLC v Elk Horn Holding Corp., 37 AD3d 198, 200). Accordingly, the Supreme Court erred in treating the motion and cross motion as if they were for summary judgment and determining them on that basis.
Under the unique factual circumstances of this case, we decline to exercise our discretion to determine that branch of Grand Aerie's motion which was for a preliminary injunction, or the cross motion for a preliminary injunction (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d at 1221; Byrne Compressed Air Equip. Co. v Sperdini, 123 AD2d 368, 369). Rather, we [*3]remit the matter to the Supreme Court, Westchester County, for further proceedings, including the determinations of that branch of the motion and the cross motion (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d at 657).