
    Francine Heller et al., Appellants, v Encore of Hicksville, Inc., et al., Respondents, et al., Defendant. Encore of Hicksville, Inc., et al., Third-Party Plaintiff s-Appellants, v K. Kadin, Inc., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And Other Actions.)
    Argued February 16, 1981;
    decided April 2, 1981
    
      APPEARANCES OF COUNSEL
    
      Malachy J. Duffy for appellants.
    
      William F. McNulty, Joseph Emmett Soffey and Anthony J. McNulty for respondents.
    
      Herbert J. Slater, Norman Bard and Sandra Krevitsky for K. Kadin, Inc., third-party defendant-respondent.
    
      Michael Majewski and Joseph D. Ahearn for Absorbent Cotton Co., third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for a review of the facts.

It cannot be said, as a matter of law, that defendant operator Ruggiero was not negligent in failing to warn the plaintiff of the dangers of smoking while she was undergoing the complicated hair treatment which he had applied. It was within the province of the jury to determine that he had failed to act upon a risk which was foreseeable to him. Moreover, it cannot be said, as a matter of law, that the plaintiff was contributorily negligent, for it was also within the province of the jury, taking into account the positions of the respective parties, to determine that the risk was unforeseeable to her.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur; Judges Jasen, Jones and Meyer dissent and vote to affirm on the ground that there was insufficient evidence in the record to sustain a finding either that there was any duty owed plaintiff or any breach thereof.

Order reversed, with costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.  