Opinion
March 13, 1991.
Present: Turcotte, P.J., McGuane Brennan, JJ.
Practice, Civil, Summary judgment; Dist./Mun. Cts. R. Civ. P., Rule 56(e).
Report of court's dismissal of plaintiff's report. Action heard in the Springfield Division by Gomez, J.
Robert Christo for the plaintiff.
Norman J. Guz, Jr. for the defendants.
The defendants' motion for summary judgment was allowed and judgment entered for each defendant. The trial judge set out her reasoning as follows: "Opposing defendants agree that a Peter Wood is not an employee or agent of the defendant. There being no material fact in dispute . . . judgment for defendant. . ." The plaintiff claims error was made by the trial judge in that the affidavits do not support the conclusion that no material fact is in dispute.
A careful reading of the defendants' affidavits and the counteraffidavit of the plaintiff reveals the contention on the plaintiff's part that one Peter Wood was "an employee and an agent of the defendants." The issue of Mr. Wood's status as an agent or employee of either defendant could be a material fact in dispute. However, the bald statement written in the style of a pleading falls short of the requirement that affidavits set out facts.
The affidavits of the defendants set out facts indicating that Mr. Wood was acting as an employee of another, not a party to these proceedings. The affidavit of the plaintiff failed to counter these facts. It is well settled that a party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Dist./Mun. Cts. R. Civ. P., Rule 56(e), 365 Mass. 825 (1974); Community National Bank v. Davis, 369 Mass. 550, 554 (1976); The Royal Bank of Canada v. Herbert L. Connolly another, 9 Mass. App. Ct. 905 (1980).
There being no error, the report is dismissed.