(a) Specific Facts Required of Adverse Party Unless Affidavits Are Unavailable. 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 the pleading, but must respond by affidavits meeting the requirements of R. 1:6-6 or as otherwise provided in this rule and by R. 4:46-2(b), setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered unless it appears from the affidavits submitted, for reasons therein stated, that the party was unable to present by affidavit facts essential to justify opposition, in which case the court may deny the motion, may order a continuance to permit additional affidavits to be obtained, depositions to be taken or discovery to be had, or may make such other order as may be appropriate.
Rule 4:46-5.Affidavits
Last amended September 1, 1996 · Current through June 18, 2026 · Last verified July 7, 2026
In one sentenceRule 4:46-5 requires a party opposing summary judgment to respond with affidavits setting out specific facts showing a genuine issue for trial rather than resting on the pleadings, and lets the court sanction a party who files affidavits in bad faith or solely to delay.
Full Text of Rule 4:46-5
(b) Affidavits Made in Bad Faith. If the court is satisfied, at any time, that any of the affidavits submitted pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses resulting from the filing of the affidavits, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.
Amendment History
New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.
Source-R.R. 4:58-7, 4:58-8(a) (b). Paragraph (a) caption and text amended June 29, 1973 to be effective September 10, 1973; paragraphs (a) and (b); amended July 13, 1994 to be effective September 1, 1994; paragraph (a); amended June 28, 1996 to be effective September 1, 1996.
Plain-English Summary
Once a properly supported summary judgment motion is on file, the opposing party cannot repeat the pleadings — it has to come forward with affidavits laying out specific facts that show a genuine issue for trial. If it doesn't, and can't explain by affidavit why essential facts couldn't yet be presented, summary judgment follows; if it can explain that gap, the court may deny the motion, grant a continuance, or order more discovery instead.
Filing affidavits in bad faith cuts the other way. If the court finds an affidavit was submitted in bad faith or purely to stall, it must order the offending party to cover the other side's reasonable expenses, including attorney's fees, and the offending party or attorney can be held in contempt.
Frequently Asked Questions
Can a party opposing summary judgment just rely on its pleadings?
No. It must respond with affidavits setting out specific facts showing a genuine issue for trial, or explain by affidavit why it could not yet present those facts.
What happens if a court finds an affidavit was filed in bad faith?
The court must order the party who filed it to pay the other side's reasonable expenses, including attorney's fees, and the offending party or attorney may be held in contempt.
Source & verification. The rule text and amendment history are reproduced verbatim from the
official New Jersey Rules of Court (N.J. Ct. R. 4:46-5). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. ·
Official source
Also known as: opposing summary judgmentbad faith affidavitgenuine issue affidavit