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17-816 - Malave v. Gault Auto Mall, Inc. et al

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17-816 - Malave v. Gault Auto Mall, Inc. et al
January 17, 2018
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REPORT AND RECOMMENDATION re 16 Cross MOTION for Summary Judgment filed by Robert Gault, Connie Gault, Gault Chevrolet, Inc., Gault Auto Mall, Inc., 15 First MOTION to Certify Class Conditionally filed by Ivelisse Malave, 1 Complaint filed by Ivelisse Malave. RECOMMENDED that defendants motion for summary judgment (Dkt. No. 16) be GRANTED and that plaintiff's claims in this action be DISMISSED, with prejudice with regard to plaintiff's FLSA claims but without prejudice in connection with her NYLL cause of action, and that plaintiffs motions for collective action certification (Dkt. No. 15) and for summary judgment (Dkt. No. 18) be DENIED on the basis of this determination. Objections to R&R due by 1/31/2018. Signed by Magistrate Judge David E. Peebles on 1/17/2018. (khr)
February 7, 2018
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DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 23) is APPROVED and ADOPTED in part with respect to Judge Peebless findings that the exemption in 29 U.S.C. ยง 213(b)(10)(A) covers service advisors, and that Plaintiffs job duties as a service advisor fell within the exemption; and it is furtherORDERED, that Judge Peebles schedule and oversee an evidentiary hearing on the limited issue of whether Defendants earn over half their revenue from the sale of vehicles. Signed by Senior Judge Lawrence E. Kahn on February 07, 2018. (sas)