A plaintiff commenced an action for damages, asserting a breach of contract claim based on a residential property contract of sale. A defendant moved for an order directing the plaintiff to pay the defendant’s reasonable attorney fees and disbursements, as well as the defendant’s costs, or in the alternative, for the matter to be set down for a hearing to determine reasonable attorney fees. The court denied the plaintiff’s motion.

The plaintiff had alleged that the premises contained a “latent defect,” i.e. a “defective heating, ventilation, and air conditioning (HVAC) system” that required extensive and “costly remediation work.” The court had granted the defendant’s motion to dismiss the breach of contract claim, holding that the plaintiff’s “contract claim merged into a deed upon completion of the transaction and that the parties did not intend the paragraphs of the agreement concerning condition of the HVAC system to survive the closing….”