Because neither the complaint in this matter nor plaintiffs affidavit in opposition to defendant’s motion to dismiss assert the cause of action divined by Supreme Court, I respectfully dissent.
To be sure, a court may “consider affidavits submitted by the plaintiff to remedy any defects in the complaint” on a CPLR 3211 motion to dismiss (Leon v Martinez, 84 NY2d 83, 88 [1994]). Here, however, plaintiff never attempted to amplify the theory of her case by affidavit nor did she proffer an amended complaint to assert a cause of action tangentially alluded to in her lawyer’s correspondence (see e.g. Murphy v American Home Prods. Corp., 58 NY2d 293, 299 [1983]). Instead, confronted with a challenge to the legal sufficiency of her complaint, plaintiff merely repeated that she had been discharged improperly based on a purportedly inapplicable Department of Health regulation. There is no mention in the affidavit to retaliatory discharge. Under these circumstances, it was not Supreme Curt’s obligation to create a theory of liability absent from both the complaint and the affidavit. I would therefore reverse and grant defendant’s motion. Ordered that the order is affirmed, with costs.