I respectfully dissent. The majority hold that a school board, through operation of the doctrine of estoppel, may effectively confer tenured status on a teacher who concededly has not met the qualifications for tenure mandated by the statute (Education Law, § 3012).
The effect of the provisions of section 3012 of the Education Law providing that tenure appointments shall be made from those who are recommended as "competent, efficient and satisfactory” and who have "served the probationary period as provided in this section” (Education Law, § 3012, subd 2) was to abrogate the board’s power to enter into contracts covering positions to which the tenure laws are applicable. (Walcott v Fisher, 274 App Div 339, affd 299 NY 688.) Therefore, because the board was not empowered to confer tenure by contract, but only in the exercise of the authority granted to it by section 3012 of the Education Law, it follows that the purported appointment of petitioner, who had not completed the *170three-year probationary period, was ultra vires and of no effect. (Matter of Weinbrown v Board of Educ., 28 NY2d 474; Matter of Boyd v Collins, 10 AD2d 584; Walcott v Fisher, supra; Matter of High v Board of Educ., 169 Misc 98; Ralston v Derry Township School Dist., 363 Pa 58; see, particularly, Matter of Rosenberg v Board of Educ., 51 AD2d 551, holding that part-time teaching service does not constitute the probationary service required by the statute as a prerequisite to a tenure appointment.)
I agree that a primary purpose of the tenure statutes is to provide security to that group of teachers who have been appointed to tenure after completing the probationary term and receiving a favorable recommendation from the superintendent. There is nothing in the legislation, however, evincing an intention that the qualifications for tenure should be relaxed or that tenure protection should be conferred on those who do not qualify. On the contrary, the provisions of the tenure statutes establishing minimum requirements for tenure were clearly designed to assure the public that only those who meet the statutory qualifications could receive the permanent status of tenure. Thus, a "probationary period is required so that school districts may ascertain which teachers are 'competent, efficient and satisfactory’ (Education Law, § 2509, subd. 2; § 3012, subd. 2; § 3014, subd. 2) prior to appointing them to tenure” (Matter of Weinbrown v Board of Educ., supra, p 476).
I must conclude, therefore, that the purported appointment of petitioner, an unqualified person, not only infringed the requirements of section 3012 of the Education Law, but was adverse to its legislative purpose of assuring that tenure appointees meet minimum requirements. Such unauthorized appointment could not be transmuted into a valid act through the operation of an estoppel. (Town of Guilderland v Swanson, 41 Misc 2d 398, mod 29 AD2d 717, affd 24 NY2d 872; Abell v Hunter, 211 App Div 467, affd 240 NY 702. See particularly Matter of Rosenberg v Board of Educ. [supra], where as here, petitioner, a part-time teacher, claimed tenured status, and it was held that actions of the board contrary to the statute on which she relied did not effect an estoppel.)
Even assuming that estoppel under certain circumstances might be applicable, I do not find the elements of estoppel here. Petitioner, although she has not completed her probationary term, has been the recipient of benefits as a tenured *171teacher. There is no showing of a change of position in reliance on the board’s unauthorized act, or of any resultant detriment, of the type shown in Bender v New York City Health & Hosps. Corp. (38 NY2d 662, 668) where, as a result of the action of the corporation counsel of New York City, the plaintiffs were lulled into not filing a notice of claim in a timely fashion against the proper party defendant, and thus lost their claim. That plaintiff is losing benefits she was never entitled to receive is not sufficient.
The potential consequences of the majority’s holding appear obvious. For if, as a result of the board’s illegal appointment and the teacher’s claimed reliance, this teacher may receive permanent tenure, although she has never fulfilled the probationary requirements, so may other teachers achieve tenure who do not meet the statutory qualifications in other respects.
Moule, J. P., and Cardamone, J., concur with Simons, J.; Hancock, Jr., J., dissents and votes to confirm the determination in an opinion.
Determination annulled, with costs, and petition granted in accordance with opinion by Simons, J.