—Judgment affirmed without costs. Memorandum: Supreme Court properly dismissed the petition seeking to annul the determination rescinding the conditional tenure appointment of petitioner and terminating her employment. Petitioner was appointed to a probationary position effective September 5, 1995. On June 4, 1998, respondent passed a resolution, on the recommendation of the Superintendent of Schools, to appoint her to a tenured position “effective *906September 2, 1998.” Approximately two weeks after the resolution was passed, school authorities learned of misconduct by petitioner. Petitioner admitted the misconduct and an investigation into the incident began. As a result of that misconduct, petitioner was offered an additional year as a probationary teacher on August 31, 1998. She rejected that offer and respondent voted later that day to rescind the conditional tenure appointment. Petitioner was terminated with 60 days’ pay.
We reject the contention of petitioner that she was a tenured employee as of August 31, 1998 and could not be terminated without affording her the due process rights provided by the Education Law. Respondent contends that tenure had not yet been granted. We agree with respondent. There may be an offer and acceptance of tenure before expiration of the probationary period, in which case tenure and all its corresponding benefits will be conferred (see, Matter of Weinbrown v Board of Educ., 28 NY2d 474, 476; see also, Matter of Roberts v Community School Bd., 66 NY2d 652, 655). Here, however, respondent rescinded the conditional tenure appointment during the probationary period before an offer or acceptance and thus petitioner was never granted tenure (see, Board of Educ. v Byram Hills Teachers’ Assn., 74 Misc 2d 621, 623, affd 43 AD2d 1020; Matter of Mulholland v Board of Educ., 70 Misc 2d 852, 857, affd 41 AD2d 704). Petitioner’s reliance on a letter from the principal is misplaced. There was no offer of tenure from the Superintendent of Schools or respondent, and only they were authorized to confer tenure (see, Education Law § 2509). The further contention of petitioner that her silence constituted acceptance under Education Law § 3019-a is improperly raised for the first time on appeal because it is not “[a] question of law appearing on the face of the record * * * [that] could not have been avoided by the opposing party if brought to that party’s attention in a timely manner” (Oram v Capone, 206 AD2d 839, 840).
All concur except Green, J. P., and Hayes, J., who dissent and vote to reverse in the following Memorandum.