RULE 4:46.
Summary Judgment
4:46-1.
Time for Making, Filing, and Serving Motion
A party seeking any
affirmative relief may, at any time after the expiration of 35 days from the
service of the pleading claiming such relief, move for a summary judgment or
order on all or any part thereof or as to any defense. A party against
whom a claim for such affirmative relief is asserted may move at any time for a
summary judgment or order as to all or any part thereof. All motions for
summary judgment shall be returnable no later than 30 days before the scheduled
trial date, unless the court otherwise orders for good cause shown, and if the
decision is not communicated to the parties at least 10 days prior to the
scheduled trial date, an application for adjournment shall be liberally
granted. Except as otherwise provided by R. 6:3-3 (motion practice
in Special Civil Part) or unless the court otherwise orders, a motion for
summary judgment shall be served and filed not later than 28 days before the
time specified for the return date; opposing affidavits, certifications,
briefs, and cross-motions for summary judgment, if any, shall be served and
filed not later than 10 days before the return date; and answers or responses
to such opposing papers or to cross-motions shall be served and filed not later
than four days before the return date. No other papers may be filed
without leave of court.
Note: Source – R.R. 4:58-1,
4:58-2. Caption and text amended November 1, 1985 to be effective January 2,
1986; amended November 5, 1986 to be effective January 1, 1987; amended
November 7, 1988 to be effective January 2, 1989; amended July 13, 1994 to be
effective September 1, 1994; amended June 28, 1996 to be effective September 1,
1996; amended July 10, 1998 to be effective September 1, 1998; amended July 27,
2006 to be effective September 1, 2006; amended July 9, 2008 to be effective
September 1, 2008; amended July 19, 2012 to be effective September 4, 2012.
4:46-2.
Motion and Proceedings Thereon
(a) Requirements in Support of Motion. The motion for summary judgment shall be served with briefs, a statement
of material facts and with or without supporting affidavits. The statement of
material facts shall set forth in separately numbered paragraphs a concise
statement of each material fact as to which the movant contends there is no
genuine issue together with a citation to the portion of the motion record
establishing the fact or demonstrating that it is uncontroverted. The citation
shall identify the document and shall specify the pages and paragraphs or lines
thereof or the specific portions of exhibits relied on. A motion for summary
judgment may be denied without prejudice for failure to file the required
statement of material facts.
(b) Requirements in Opposition to Motion. A party opposing the motion shall file a responding statement either
admitting or disputing each of the facts in the movant's statement. Subject to
R. 4:46-5(a), all material facts in the movant's statement which are
sufficiently supported will be deemed admitted for purposes of the motion only,
unless specifically disputed by citation conforming to the requirements of
paragraph (a) demonstrating the existence of a genuine issue as to the fact. An
opposing party may also include in the responding statement additional facts
that the party contends are material and as to which there exists a genuine
issue. Each such fact shall be stated in separately numbered paragraphs
together with citations to the motion record.
(c) Proceedings and Standards on Motions. The judgment or order sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact challenged and that the moving party is entitled to a judgment or order as
a matter of law. An issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the non-moving
party, would require submission of the issue to the trier of fact. The court
shall find the facts and state its conclusions in accordance with R. 1:7-4. A
summary judgment or order, interlocutory in character, may be rendered on any issue
in the action (including the issue of liability) although there is a genuine
factual dispute as to any other issue (including any issue as to the amount of
damages). Subject to the provisions of R. 4:42-2 (judgment upon multiple
claims), a summary judgment final in character may be rendered in respect of
any portion of the damages claimed.
Note: Source-R.R. 4:58-3.
Amended July 14, 1972 to be effective September 5, 1972; amended June 29, 1973
to be effective September 10, 1973; amended and subparagraphs designated June
28, 1996 to be effective September 1, 1996; paragraph (b) amended July 10, 1998
to be effective September 1, 1998.
4:46-3.
Case Not Adjudicated on Motion
(a) Order Limiting Factual Controversy. If on motion under this rule judgment is not rendered upon the whole
action or for all the relief asked and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings and the evidence before it
and by interrogating counsel, shall, if practicable, ascertain what material
facts, including facts as to the amount of damages, exist without substantial
controversy and shall thereupon make an order specifying those facts and
directing such further proceedings in the action as are appropriate. Upon trial
of the action the facts so specified shall be deemed established.
(b) Order for Trial. If after the
inquiry prescribed by paragraph (a) of this rule it appears to the court at the
hearing of the motion that the case may be fully or partially adjudicated upon
limited testimony, with or without specific further discovery, the court shall,
if practicable, enter an order fixing a date certain for the trial of
specifically identified disputed factual issues and, if appropriate, fixing the
subject, mode, and time for completion of discovery.
Note: Source-R.R. 4:58-4. Former
rule redesignated as paragraph (a), paragraph (b) adopted July 26, 1984 to be
effective September 10, 1984.
4:46-4.
Leave to Proceed Upon Terms
Leave to proceed may be
given unconditionally, or upon such terms as to giving security, or time or
mode of trial, or otherwise, as is deemed just.
