Opinion
May 28, 1963
Order, entered on May 8, 1962, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and summary judgment granted to defendant-appellant. In this suit to enjoin the Commissioner of the Department of Real Estate from offering for lease certain lands acquired by the city in condemnation, plaintiff, suing as a taxpayer, moved for a temporary injunction. Defendant cross-moved for a judgment under rules 106, 112 and 113 of the Rules of Civil Practice. The court denied the application for an injunction. On the cross motion the court determined that the complaint stated a cause of action and that there were triable issues. The gravamen of the action is that the retention of the properties is so clearly contrary to the interests of the city that the act of the responsible official amounts to waste. The affidavit fails to show this. Short of a prima facie showing to this effect, there is no triable issue ( Kaskel v. Impellitteri, 306 N.Y. 73).
Concur — Breitel, J.P., McNally, Stevens, Eager and Steuer, JJ.