
    Six Nations Apartment Housing Fund Development Company, Inc., Appellant, v Six Nations Properties, Ltd., Respondent.
   — Judgment unanimously reversed on the law without costs, complaint reinstated, and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Supreme Court erred by resolving the issue of the reasonableness of plaintiff’s actions on defendant’s motion to dismiss the complaint without giving appropriate notice to the parties of its intention to treat the motion as one for summary judgment (CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508). The court’s action cannot be justified as a proper response to plaintiff’s motion for a preliminary injunction. Although a motion for a preliminary injunction does allow the court to search the record and pass upon the sufficiency of the underlying pleadings, that inquiry is limited to whether plaintiff has a cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275). The power does not extend to an evaluation of conflicting evidence.

Defendant’s reliance upon Bero v Bero (143 AD2d 866) is misplaced. There, dismissal of the complaint was proper upon defendant’s production of a later, valid deed which demonstrated that a material fact, as claimed by plaintiff, was not a fact at all (see, Bero v Bero, supra, at 868). Here, whether plaintiff’s conduct was reasonable is an issue of fact that cannot be resolved on a motion to dismiss. Consequently, we reverse the judgment and remit the matter to Supreme Court to consider the merits of plaintiffs motion and of defendant’s cross motion. (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — Summary Judgment.) Present— Dillon, P. J., Doerr, Lowery and Davis, JJ.  