Opinion
April 6, 1992
Appeal from the Supreme Court, Kings County (Huttner, J.).
Ordered that the appeal from the order entered February 6, 1990, is dismissed, as that order was superseded by the order dated May 21, 1990, made upon reargument; and it is further,
Ordered that the order dated May 21, 1990, is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The defendant terminated the plaintiff's employment on November 18, 1988. Thereafter, the plaintiff mailed a complaint dated November 18, 1988, to the Equal Employment Opportunity Commission (hereinafter EEOC), alleging, inter alia, unlawful discriminatory practices by the defendant. It is undisputed that the EEOC received this complaint on November 28, 1988. In the interim, on November 21, 1988, the plaintiff commenced the present action.
We find no merit to the defendant's contention that this action is barred by Executive Law § 297 (9). Under the Code of Federal Regulations, a complaint is considered "filed" at the earliest when it has been received by the agency (see, 29 C.F.R. § 1601.13 [a] [4] [ii] [B]). Since the instant action was commenced before the EEOC received the administrative complaint, the action is not barred by Executive Law § 297 (9). We have not considered the effect of the amendment to Executive Law § 297 (9), as that amendment only applies to complaints filed on or after July 15, 1991 (L 1991, ch 342).
We have considered the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Balletta, Lawrence and Santucci, JJ., concur.