The opinion
Judge GREENE
concurring.
I write separately to emphasize that the pre-hearing filing requirement applicable to affidavits in support of and in opposition to a summary judgment motion does not apply to other evidence the parties may wish to present at the summary judgment hearing.
In addition to affidavits, other appropriate evidence at a summary judgment hearing includes the pleadings, depositions, stipulations, answers to interrogatories, admissions on file, and oral testimony. N.C.G.S. § 1A-1, Rule 56(c) (1990) (authorizing consideration of “the pleadings, depositions, answers to interrogatories, and admissions on file”); N.C.G.S. § 1A-1, Rule 43(e) (1990) (“[w]hen a motion is based on facts not appearing of record the court . . . may direct that the matter be heard wholly or partly on oral testimony . . .”); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2723 (2d ed. 1983) (Rule 43(e) applies to summary judgment motions). With the exception of affidavits, the other evidence appropriately considered by a trial court at a summary judgment hearing need not be presented “prior to the day of [the] hearing . . . .”
Furthermore, despite the specific language of Rule 56(c) requiring affidavits to be filed “prior to the day of [the] hearing,” the trial court may in some instances permit the filing of the affidavits at a later time. If a request for permission to file affidavits at some later time is made before the date of the summary judgment hearing, the trial court may in its discretion order the period for filing affidavits to be enlarged. N.C.G.S. § 1A-1, Rule 6(b) (1990). If a request for permission to file affidavits is made on the day of the summary judgment hearing, the trial court “may permit *129 the act to be done where the failure to act was the result of excusable neglect.” Id.
Here, there was no request for enlargement of time within which to file and serve any affidavits made by the plaintiff prior to the day of the hearing of the motion on summary judgment. Furthermore, there was no finding or a request by the plaintiff for a finding of excusable neglect in failing to serve the affidavits prior to the date of the summary judgment hearing. Therefore, because the plaintiff failed to proceed in a manner that would permit the trial court to exercise its discretion to permit the filing of plaintiff’s proffered affidavit, the plaintiff cannot complain about its exclusion.