We respectfully dissent. The only issue before us is whether petitioner fully exhausted available administrative remedies before commencing this CPLR article 78 proceeding, which in turn depends upon whether he was, in fact, entitled to a hearing, and if so, whether Supreme Court was correct in concluding that a request for one would have been futile.
Although respondent’s "Progressive Discipline Procedures” (hereinafter the 1989 procedures), read in conjunction with other provisions in the Employee Handbook to which they were appended, indicate that an employee presented with charges and a proposed penalty is entitled to a hearing if a request is made within five days, those procedures do not necessarily apply where discipline is purportedly imposed as a result of a material deficiency in performance. A preface to the 1989 procedures unambiguously states that when such a deficiency is found, as it was in this case, if the procedures set forth in a 1987 policy statement (hereinafter the 1987 procedures)—which include informal and formal counseling, development of a work plan, and repeated evaluation of perfor*576manee—are utilized, failure to follow the 1989 procedures does not bar the imposition of discipline. Respondent apparently attempted to follow the 1987 procedures, which make no provision for a hearing, only to be thwarted by petitioner’s refusal to cooperate; be that as it may, respondent, in its answering papers and in its brief on appeal, has repeatedly argued that it followed the 1987 procedures with regard to petitioner’s termination, and that consequently the 1989 procedures did not apply. It ill-behooves respondent to now claim that petitioner should have requested the hearing provided by the 1989 procedures, after continuously asserting that those procedures were wholly inapplicable.
Moreover, given respondent’s manifest belief that the 1987 procedures governed the situation, any request for a hearing undoubtedly would have been denied; in these circumstances, it would have been senseless for petitioner to have sought one (see, Esther C. v Ambach, 142 AD2d 94, 98, appeal dismissed 75 NY2d 765).
Accordingly, we would affirm Supreme Court’s judgment finding that petitioner’s proceeding was not barred by his failure to pursue administrative remedies, and reinstate petitioner as of June 28, 1991.
Cardona, P. J., concurs. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.