Opinion
November 15, 1991
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, A.P.J., Boomer, Pine, Balio and Lawton, JJ.
Order unanimously affirmed without costs. Memorandum: The record reveals that on October 5, 1989, defendant's membership voted unanimously to approve a formal contract submitted by plaintiff for the sale of a portion of defendant's real property in the Town of Niagara. Plaintiff is not entitled to specific performance of that contract, however, because it was never subscribed by defendant (see, General Obligations Law § 5-703; Elghanayan v. Forest Hills No. 2 Co., 123 A.D.2d 417). Although a written "proposal" was subscribed by defendant before submission of the contract of sale, that "proposal" contains terms that conflict with the contract of sale and that were never agreed upon by the parties. That "proposal" is not enforceable as a separate instrument because it fails to include a contingency that all necessary governmental consents and permits be obtained (see, Coniglio v Old Brookville Assocs., 162 A.D.2d 432; Jaffer v. Miles, 134 A.D.2d 572, 573, appeal dismissed 71 N.Y.2d 927; Tetz v. Dexter, 133 A.D.2d 79), and because it contains a counteroffer that was never accepted by plaintiff (see, Cohen v. Securan Realty Corp., 151 A.D.2d 634).