dissents and votes to reverse the order appealed from and to deny the defendant’s motion for summary judgment dismissing the complaint as barred by the Statute of Limitations, with the following memorandum:
The plaintiff’s complaint, as well as her bill of particulars, alleged, inter alia, that she was injured on August 17, 1981, by reason of the defendant doctor’s failure to respond to her request for assistance in getting off an examination table. The majority is of the view that this allegation sounds in malpractice, and that the plaintiff’s action, commenced on August 28, 1984, is barred by the 2½-year Statute of Limitations governing malpractice actions (see, CPLR 214-a).
I disagree with the majority’s conclusion. In my view, the plaintiff’s allegation in her complaint regarding the defen*856dant’s failure to respond to her request for assistance in getting off the examining table sounds in ordinary negligence, and is governed by the three-year Statute of Limitations (see, CPLR 214).
In Hale v State of New York (53 AD2d 1025), the court stated: "To maintain an action for injuries or wrongful death sustained while under the care and control of a medical practitioner and/or medical facility, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice (Morwin v Albany Hosp., 7 AD2d 582, 584-585 * * *). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of facts on common knowledge”. I fail to see any reason why a jury could not determine, as a question of fact, whether or not the defendant was guilty of simple negligence in failing to respond to the plaintiff’s request for assistance in getting off the examination table, as alleged in the complaint.
Since this allegation is governed by the three-year Statute of Limitations, the complaint should not have been dismissed as time barred.