CHENEY v. PENNEY CO INC (2000)

 Supreme Court properly denied that part of defendants' motion seeking dismissal of the third cause of action.   By failing to plead the Statute of Limitations as an affirmative defense in their answer and by failing to move to dismiss the third cause of action as barred by the Statute of Limitations, defendants waived that defense (see, Mendez v. Steen Trucking, 254 A.D.2d 715, 716, 680 N.Y.S.2d 134).   The allegations of the amended complaint are sufficient to make out a prima facie case of intentional infliction of emotional distress (see, Howell v. New York Post Co., 81 N.Y.2d 115, 120-121, 596 N.Y.S.2d 350, 612 N.E.2d 699;  cf., Lawson v. Electronic Data Sys., 184 A.D.2d 1037, 584 N.Y.S.2d 359, lv. denied 80 N.Y.2d 757, 589 N.Y.S.2d 308, 602 N.E.2d 1124).

 The court erred, however, in granting that part of defendants' motion seeking dismissal of the fourth and fifth causes of action.   Plaintiff raised an issue of fact whether her Equal Employment Opportunity Commission (EEOC) complaint was timely (see, Cornwell v. Robinson, 2d Cir., 23 F.3d 694, 704).   If plaintiff's EEOC complaint was timely, plaintiff may raise the issue whether her subsequent discharge constituted retaliatory conduct on the part of her employer without being required to file another complaint with EEOC (see, Owens v. New York City Hous. Auth., 2d Cir., 934 F.2d 405, 410-411, cert. denied 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 451).   We modify the order, therefore, by denying that part of defendants' motion seeking dismissal of the fourth and fifth causes of action and reinstating those causes of action.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: