Graves v. Trudell - 309 A.D.2d 1220, 765 N.Y.S.2d 104 (App. Div. 4th Dept. 2003)

Rule:

Plaintiff established that he encountered an armed intruder who forcibly entered his dwelling and thus plaintiff was justified in using deadly force to protect himself and the other person in the dwelling (see Penal Law § 35.15 [2] [a] [i]) and to stop the apparent burglary (see § 35.20 [3]). 

Facts:

The victim claimed that the decedent forcibly entered the victim's home with a loaded shotgun and shot the victim in the leg and that the victim then returned fire, killing the decedent. The co-administrators opposed the victim's motion for partial summary judgment as to liability, claiming that the police could not determine who shot first.

Issue:

Did the trial court err in denying the victim's motion seeking partial summary judgment on liability?

Answer:

Yes

Conclusion:

The Court held that such inability did not raise an issue of fact with respect to the decedent's liability and noted that the opposition to the motion was based on affidavits of individuals who did not have firsthand knowledge of the events. Therefore, the trial court erred in denying the victim's motion seeking partial summary judgment on liability because the victim met his initial burden by establishing that he encountered an armed intruder who forcibly entered his dwelling and thus was justified in using deadly force to protect himself and the other person in the dwelling and to stop the apparent burglary.