Appeal by plaintiffs from an order of the District Court, Nassau County (R. Marber, J.), entered on September 14, 2004, denying their cross motion for summary judgment and granting defendant's motion to dismiss the complaint pursuant to CPLR 3211.

Order unanimously modified by providing that defendant's motion to dismiss the complaint is denied; as so modified, affirmed without costs.

In this action for alleged breach of a collective bargaining agreement through defendant's refusal to compensate plaintiff Tobias Daempfle for accrued sick and vacation leave time when he left his employment with defendant, the court below erred
in dismissing the complaint for failure to exhaust administrative remedies, a ground not raised in defendant's motion to dismiss (see Goldstein v Haberman, 183 AD2d 807 [1992]). Plaintiffs in fact had pleaded (and defendant's affidavit in support of its motion to dismiss had confirmed) that the parties' administrative grievance system had been exhausted, and the court was required to treat this pleading as true upon a motion to dismiss pursuant to CPLR 3211 absent specific documentary proof to the contrary, which defendant did not provide (see Arnav Indus. v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303-304 [2001]).

In granting defendant's motion to dismiss on a ground not raised in the motion, the court acted essentially on its own motion, without notice to the parties, rendering plaintiffs powerless to address this argument and causing substantial prejudice to them (see McLearn v Cowen & Co., 60 NY2d 686 [1983]; Goldstein v Haberman, 183 AD2d 807, supra).
Dismissal is not warranted in any event, as the contract upon which the complaint is based is ambiguous as a matter of law (see W.W.W. Assocs. v Giacontieri, 77 NY2d 157 [1990]; Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186 [1986]). It is subject to more than one reasonable interpretation, to wit, that "service in the District" might mean either service in any [*2]title or in an "Administrator" title only, and as to whether plaintiff Daempfle's service time prior to his first severance from employment with defendant could be used to qualify him for benefits allegedly due him upon his second departure. These issues, as well as any others properly raised in the course of further proceedings, must be resolved upon the submission of further evidence to the court below.
Plaintiffs' cross motion for summary judgment was properly denied as premature, as such a motion may only be made after issue is joined (see CPLR 3212 [a]), i.e., after service of the answer (see Rochester v Chiarella, 65 NY2d 92 [1985]). Moreover, summary judgment is not warranted due to the issues of fact raised by the ambiguities of the contract.
Decision Date: July 21, 2005