Scinta v. Connelly , 54 A.D.2d 616 ( 1976 )

unanimously affirmed, without costs. Memorandum: In this negligence action plaintiffs Horace and Mildred Scinta seek damages in the amount of $40,000 for the destruction of their barn in a fire on September 6, 1971. Following examinations before trial of the two infant defendants, plaintiffs moved for summary judgment on the grounds there were no triable issues of fact. With respect to defendant Kenneth Smith, who was nine years old at the time of the occurrence, the court properly denied summary judgment. At the examination before trial, although he admitted being in the barn when the fire was started, he categorically denied lighting any matches or setting the hay on fire. In spite of the inculpatory testimony of his companion, defendant Smith’s statements clearly establish a triable issue of fact regarding his complicity and liability for negligence. The motion was also properly denied with respect to defendant Connelly. Although this defendant, who was 13 years of age in 1971, admitted setting fire to pieces of hay, that admission alone does not establish negligence as a matter of law thereby entitling plaintiffs to summary judgment. Rather, before such negligence may be established, defendant’s age, intelligence and experience as well as the circumstances under which the act was committed must be taken into consideration (Eagle v Janoff, 12 AD2d 638). These factors together with the question of whether a defendant has conformed to the standard of care required by law are ordinarily issues of fact for the jury’s consideration (Andre v Pomeroy, 35 NY2d 361, 366). Since in the instant case defendant Connelly’s compliance with the standard of care imposed upon children of like age and intelligence necessarily involves a factual determination, summary judgment would be inappropriate. (Appeal from order of Niagara Supreme Court—summary judgment.) Present—Marsh, P. J., Moule, Cardamone, Simons and Goldman, JJ.