In an action to recover damages for an unlawful discriminatory discharge from employment, the defendant appeals from (1) so much of an order of the Supreme Court, Kings County (Huttner, J.), entered February 6, 1990, as denied its motion to dismiss the third and fourth causes of action asserted in the amended complaint, and (2) so much of an order of the same court, dated May 21, 1990, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order entered February 6, 1990, is dismissed, as that order was superseded by the order dated May 21, 1990, made upon reargument; and it is further,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 *616Opportunity 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 CFR 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.