USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOC#: □□ PERALTA, DATE FILED; _5/11/2023 Plaintiff, 22-cv-08915 (ALC) -against- VICTOR’S CAFE 52ND STREET ET AL., ORDER OF DISMISSAL Defendants. ANDREW L. CARTER, United States District Judge: Plaintiff commenced this action against Defendants Victor's Cafe 52nd Street, Inc., Sonia Zaldivar, and Monica Zaldivar on October 19, 2022. ECF No. 1. Plaintiff alleged violations of the Fair Labor Standards Act,

et seq. (“FLSA”) and the New York Labor Law (“NYLL”). On November 10, 2022, Plaintiff filed a notice of voluntary dismissal pursuant to Rule 41(A)(1)(A)() indicating he was dismissing his FLSA and NYLL claims against Defendants without prejudice and that he intends to pursue arbitration. ECF No. 13. Neither party moved to compel arbitration, nor did they ask the Court to keep the case open pending arbitration. Plaintiff clarified in a follow up letter that the parties had not settled and that Plaintiff intends to pursue his claims in arbitration. ECF No. 14. Therefore, no FLSA settlement exists. See Samake v. Thunder Lube, Inc.,

(2d Cir. 2022) (“Had a FLSA settlement existed, the district court would then engage in a Cheeks fairness review, but in the absence of a settlement, the notice of dismissal [pursuant to Rule 41(a)(1)(A)()] should be so-ordered.”). Accordingly, this action is hereby DISMISSED WITHOUT PREJUDICE. The Clerk of Court is respectfully directed to terminate this case.

SO ORDERED.

Dated: May 11, 2023 [Arado / (ee New York, New York sa ANDREW L. CARTER, JR. United States District Judge