City of Thomasville v. Lease-Martin Afex, Inc. ( 1978 )

VAUGHN, Judge.

We find no merit in plaintiff’s argument that the court erred when it refused to grant his oral motion to continue so that other discovery might be completed. The motion, made on the very day of the hearing, came over three years after the fire, twelve months after the suit was started and nearly two months after defendant had moved for summary judgment. The motion was properly denied. Moreover, it should be noted that plaintiff did not seek to invoke Rule 56(f) by showing by affidavit reasons why he could not at that time present facts essential to justify his opposition to the motion for summary judgment.

We also conclude that the entry of summary judgment for defendant was appropriate for any one of several reasons. We will discuss only one. Although plaintiff alleged several claims for relief, all of them were grounded upon the premise that “the fire suppression system did not activate automatically and could not be activated manually.” It appears that the fire suppression system was supposed to discharge a chemical powder from a central tank through a series of nozzles. To negate the allegations that the system “failed to activate,” defendant introduced the deposition of plaintiff’s employee, Hurst, who was operating the bulldozer when the fire started. Hurst was unable to say whether the fire suppression system activated but did say he thought he saw some powder on the nozzle. Defendant also introduced the deposition of Hurst’s supervisor, Lanier. Lanier got to the scene after the fire department extinguished the fire. He said,

“Where the water had not been sprayed, it was covered with white powder. . . .

From looking at the front of the dozer, you could tell that the system had activated. You couldn’t tell one way or another in the rear of the dozer where the firemen had sprayed the water.

I don’t know of any reason why the front would activate and the rear would not — it all comes from the same connection from the tank.”

Rule 56(e), provides that

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

See also Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E. 2d 278 (1976). Plaintiff introduced no affidavits or other materials to show the alleged failure to activate and thereby raise an issue of fact. Neither did plaintiff show by affidavit any reason that he could not provide such evidence, which would justify the court’s refusal to enter judgment until discovery might be had. See G.S. 1A-1, Rule 56(f). Plaintiff offered nothing beyond its bare allegations that the suppression system did not activate. This was insufficient under Rule 56(e) which “clearly precludes any party from prevailing against a motion for summary judgment through reliance on such conclusory allegations unsupported by facts.” Nasco Equipment Co. v. Mason, supra, at 152.

Summary judgment for the defendant is affirmed.

Affirmed.

Judges MARTIN (Robert M.) and MITCHELL concur.