The following papers were used on this (non-efiled) motion: Plaintiff’s Papers Order to Show Cause Verified Petition Affidavit of Emergency Part 130 Certification Legal Back Part 130 Verification E-mail Notification to Defendant Regarding Filed Order to Show Cause Exhibit A — Good Faith Letter to Defendant Exhibit B — Client Invoices, Billing Notices Exhibit C — Communications between Parties Affidavits of Service Miscellaneous Papers Requisitioned by Court Transcript of Proceedings, July 12, 2024 DECISION AND ORDER Background This action concerns whether a non-attorney who enters into a fee-splitting contract for a percentage commission of an attorney’s fees from clients possesses a cause of action for breach of the contract in light of Judiciary Law §491′s prohibition against attorneys’ sharing of compensation, and the right to, in effect, an accounting of the attorney’s billings and receipts. Vandell Park (“Plaintiff Park” or “Park”) is the plaintiff in this action and brings forth, in essence, a breach of contract claim against his former employer and the defendant in the action, Fern DeJonge, Esq. (“Defendant DeJonge” or “DeJonge”)1, who is his cousin. DeJonge is a licensed attorney in the state of New York and is self-employed as a solo general practitioner in Kings County, New York. Both parties have elected to represent themselves pro se. This matter was brought on via an order to show cause, signed by the Hon. Francois Rivera on July 3, 2024, a verified petition, and various other supporting papers, including exhibits. The order’s provisions stated that personal service had to be made on or before July 8, 2024, and an affidavit of service had to be presented to the Court on the return date. There was no summons and complaint nor other papers by which an action is commenced. Since this Court commenced serving as a Supreme Court Justice in January 2023, it has noticed that various pro se plaintiffs have commenced lawsuits via order to show cause and verified petition and not by summons and complaint. The Court surmises that this is occurring because the pro se plaintiffs are obtaining blank template order to show cause and verified petition forms from the Help Center of Supreme Court, Kings County, and are completing them without also completing a summons and complaint. Apparently, since “the Kings County Court Help Center is prohibited by law from giving legal advice and can not complete forms on your behalf” (https://ww2.nycourts.gov/courts/2jd/kings/civil/helpcenter.shtml [last accessed Sept. 14, 2024]), pro se plaintiffs are bypassing the CPLR’s requirements concerning how to commence actions. While an order to show cause may bring on a motion within an action, for instance one which seeks a preliminary injunction, nonetheless there would still need to be papers commencing the action, such as a summons and complaint, a summons with notice, or a summons with motion for summary judgment in lieu of a complaint. The Help Center’s website indeed does provide a copy of a summons and complaint, contained within a 14-page PDF file accessible through the link, “How to Commence a Civil Action,” on the page appearing at https:/ww2.nycourts.gov/courts/2jd/kings/civil/helpcenter.shtml. Pro se plaintiffs would be well served by reading this PDF file initially, prior to submitting formal papers to the court. In that way, an action could be commenced so that any motion brought on would constitute an application for relief incidental to the action. It is true that an order to show cause can commence a special proceeding but the subject matters of special proceedings are limited. They certainly do not encompass the subject matter of this lawsuit, which was a simple breach of contract claim. At the hearing held on the return date in this case, July 12, 2024, the Court pointed out to Plaintiff Park that he commenced this matter with an order to show cause and verified petition but there was no summons and complaint. Neither was there a cited statute for maintaining this as a special proceeding. Rather than dismiss this matter for lack of compliance with the CPLR’s formalities for commencing an action, the Court elected to treat the filed order to show cause and verified petition as a summons and motion for summary judgment since CPLR 2101 (f) permits a court to disregard a defect in a paper’s form if a substantial right of a party is not prejudiced (see tr at 26- 28). Defendant DeJonge was not prejudiced by the Court’s treatment of Plaintiff Park’s papers since the papers elucidated his claim and requested relief. The Court permitted the parties to make oral argument under oath since factual matters were being alleged. Whether the “Affix and Mail” Service was Proper under CPLR 308 (4) At the outset of oral argument, the Court engaged in a review of the means by which the order to show cause and papers upon which it was granted were served. The order to show cause signed by Hon. Justice Rivera required “personal service.” That implicates the provisions of CPLR 308, which deals with personal service upon a natural person. CPLR 308 requires that the defendant be served by one of several modalities. Paragraph 1 calls for delivery to the person to be served. Paragraph 2 calls for delivery to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other….” Further relevant are the provisions in paragraph 4 of CPLR 308, which provide, “[W]here service under paragraphs one and two cannot be made with due diligence, [service can be made] by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other….” “Service of process upon a natural person must be made in strict compliance with the statutory methods of service outlined in CPLR 308″ (HSBC Mtge. Corp. (USA) v. Hollender, 159 AD3d 883, 883 [2d Dept 2018]). Therefore, it is only upon the exercise of “due diligence” that a plaintiff, when the above provisions of paragraphs 1 and 2 are found to be unavailable, may attempt affix and mail service, commonly referred to as “nail and mail” service (see CPLR 308 [4]). Due diligence has been construed by the Second Department to mean “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such locations at those times” (Ramirez v. Escobar, 228 AD3d 791, 792 [2d Dept 2024], quoting Estate of Waterman v. Jones, 46 AD3d 63, 66 [2d Dept 2007]; see HSBC Mtge. Corp. (USA) v. Hollender, 159 AD3d at 883; Wells Fargo Bank, NA v. Besemer, 131 AD3d 1047, 1048 [2d Dept 2015]). In the case at bar, service pursuant to paragraphs 1 and 2 of CPLR 308 was not effectuated as personal delivery was not made to Defendant DeJonge herself, nor was substituted service completed successfully. Plaintiff Park employed Miguel Gedeon’s services to serve DeJonge at her home address on multiple occasions; however, she was informed by an unidentified female voice that DeJonge was not home (see Miguel Gedeon aff). Since nobody answered the door to accept the papers, service under the first two prongs of CPLR 308 was deemed impracticable. Therefore, to satisfy the “due diligence” prong, Park should have directed service to DeJonge’s firm, which was located at a separate location. Since Park worked for DeJonge and likely knew DeJonge’s hours and habits, Park should have directed service to her office to satisfy due diligence for purposes of moving on to “nail and mail” service under CPLR 308 (4). (See Ramirez v. Escobar, 228 AD3d at 792; Prego v. Bartkowski, 216 AD3d 679, 681 [2d Dept 2023].) In an attempt to comply with the mandate for personal service, Gedeon mailed the order to show cause and supporting papers via overnight express delivery through the United States Postal Service (USPS) on July 5, 2024. A receipt confirming the method of delivery was provided to the Court, as well as an affidavit of service. However, the order to show cause was not affixed to DeJonge’s door. Instead, on July 8, 2024, it was placed in DeJonge’s mailbox. Park observed Gideon placing the document in the mailbox, confirming to the Court that such service was completed and noting that the mailing was not affixed to the door. (See tr at 8.) Ultimately, Park failed to comply with the requirements of CPLR 308 (4) to acquire personal jurisdiction over DeJonge. The Court looks to the statute’s plain language as to whether affix and mail service is proper if the envelope is placed in a mailbox. CPLR 308 (4) states that the summons — or order to show cause as presented in the facts here — must be served by “affixing the summons to the door” of either the dwelling place, usual place of abode, or business of the defendant (see CPLR 308 [4] [emphasis added]). Since the rule does not permit placing the summons in a defendant’s mailbox to satisfy the affixation component of service, the Court looks to the Second Department for guidance. The Appellate Division has strictly held that “the plaintiff must demonstrate that the summons was affixed to the door of the dwelling place or usual place of abode” (Deutsche Bank Natl. Trust Co. v. O’King, 148 AD3d 776, 777 [2d Dept 2017]; see US Bank N.A. v. Henry, 219 AD3d 854 [2d Dept 2023]; Matter of Ferrara v. Serrano, 189 AD 3d 1230 [2d Dept 2020]). Indeed it has been held that service of papers by placing them in a mailbox instead of affixing them to the door constitutes improper service (see Matter of Fratello v. Kruger, 64 AD2d 937 [2d Dept 1978]). Nonetheless, this Court holds that despite the obvious deficiency in serving the order to show cause and supporting papers, it is not a bar to making a determination on the merits. DeJonge made an application at oral argument to put in opposition papers (see tr at 2), and the Court denied it due to noncompliance with the Part Rules concerning adjournments (see id. at 3-4, 28).2 DeJonge could have asserted the improper service in her oral argument to the Court but she did not do so. It was the Court which raised the service issue. Since DeJonge formally and actively litigated this matter and its merits before the Court — and did not object to the manner in which the papers were served even after the Court sua sponte discussed the subject — the Court finds that the matter of improper service should not be held against Park, relying on a series of cases holding that improper service of an order to show cause can be waived as an issue (see Matter of Montal v. Koplen, 220 AD3d 824 [2d Dept 2023]; Matter of Sasson v. Board of Elections in City of N.Y., 65 AD3d 995 [2d Dept 2009]; Matter of Gregory v. Board of Elections of City of N.Y., 93 AD2d 894 [2d Dept], affd 59 NY2d 668 [1983]). Thus, the Court shall proceed to a discussion of the underlying dispute. Whether the Fee-Splitting Agreement is Enforceable Plaintiff Park’s claim against Defendant DeJonge sounds in breach of contract. In support of it, Park submitted various documents. Both parties testified and responded to questions from the Court. The parties are cousins and commenced a professional relationship in 2017 via an oral contract in which DeJonge agreed to provide Park employment as a legal assistant in her firm. Park participated in numerous aspects of client work, including clerical work and limited legal work, under the guidance of DeJonge. He even brought it a few clients. The parties agreed that Park would be compensated with 33 percent of whatever DeJonge received in attorney’s fees upon completing a client’s case, so long as Park participated in that client’s case. This arrangement continued until April 2021, when DeJonge reduced the commission rate to 23 percent. Once again, the parties agreed via an oral contract. However, Park alleges that DeJonge stopped being forthcoming about the amounts clients have paid her and, therefore, Park was unable to ascertain the commission payments which he claimed he was entitled to. As Park alleged in his verified petition where the template form instruction was to describe all facts concerning the claims being made, 3. …The Defendant retain[ed] the services of the Plaintiff by way of a verbal contract in 2017, October, offering to pay the Plaintiff 33 percent commission for work done for clients of her office. In April 2021, the Defendant reduced the Plaintiff’s commission to 23 percent for work done for Clients of her office. 4. The Defendant has not been transparent with regards to payments made by Clients to her office, claiming that she does not have to tell the Plaintiff how much money the Clients pay, thus the Plaintiff cannot accurately calculate his commission. Plaintiff wants to calculate his commission accumulation. Thus he must be shown payment statements of monies paid to the Defendant. 5. Please accept Plaintiff’s good faith letter to the Defendant as an explanation of Plaintiff’s request of this Court. Plaintiff is asking base[d] on his good faith letter, an immediate payment of $10,000.00 for Plaintiff has no money to take care of his basic needs. 6. Plaintiff is asking for Defendant to immediately produce invoices and payments for clients: (1) Leslie Walker / Rita Malone estate (2) Judy Lyons divorce (3) Merlyn Osbourne; (4) Ann Marie / Colin Weeks. (Verified pet
