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SUPREME COURT STATE OF NEW YORK

Present:

Hon. Stuart L. Aim

STRATTON OAKMONT, INC.
and DANIEL PORUSH,

Plaintiff(s),

-against-

PRODIGY SERVICES COMPANY, a
partnership or joint venture with
IBM CORPORATION AND SEARS ROEBUCK
& COMPANY, "JOHN DOE" and "MARY
ROE",

Defendant(s)

The following papers read on this motion:
Notice of Motion
Memo of Law in Support
Amicus Memo - Authors Guild, Inc.
Affidavit of Plaintiff's Counsel
Replay Affidavit

Upon the foregoing papers, it is ordered that this motion
by Defendant, for an order granting renewal and/or
reargument of the  Plaintiff's motion for partial summary
judgment is disposed of as hereinafter provided.

By order dated May 24, 1995, this Court determined, inter
alia,  that the Defendant PRODIGY SERVICES COMPANY
("PRODIGY"), was a  "publisher" of certain statements
concerning Plaintiffs which  appeared on its "Money Talk"
computer bulletin board for the  purposes of Plaintiffs'
libel claims in this action.

It will suffice, to note that the Court's decision has
received  wide attention.  Obviously, recent advances in
computer  technology have caused what some commentators
have called  "explosive growth" in the Internet and its
usage.  What was once  a tool used only by a handful of
researchers and scientists has  become a means of
entertainment, education and business which is  used by
millions of people on a daily basis.

As a result, and largely because there is very little legal
precedent directly on point, the Court's decision of May
24,  1995, has been highly publicized in the media and in
legal  circles.  Presumably, the reason for this attention
is that the  decision offers some guidance for the
"cyber-content provider [in determining] what its
responsibilities and/or liabilities  are...(Lieberstein and
Landa, Content Provider Liability:  Publishers or
Vendors?), State Bar News, Vol. 37, No. 6, p.11).

Against this background, PRODIGY moves for reargument
and/or renewal of the motion and the Plaintiffs have
decided not to oppose the motion (Affidavit of Jacob
Zamansky, sworn to October 23, 1995).  Indeed, there have
been media reports that the parties have decided to
"settle" this case. Those reports are, to the best of the
Court's knowledge, inaccurate as PRODIGY has thus far
insisted that any settlement be conditioned upon vacatur of
the Court's May 24, 1995 decision.  The Court has declined
to vacate the order as part of a settlement package.  As
recently noted by the Appellate Division, First Department:

"While we appreciate the desirability of settlement, we do
not believe it would be advisable to allow private parties
to demand that the Court eradicate precedent which they
personally find unacceptable on threat of burdensome
litigation should the Court refuse.  Moreover, we note the
conclusion of the Supreme Court that, to follow a policy in
which private parties could agree to vacate a decision and
order by agreement would not necessarily, as a general
matter, serve the purpose of encouraging settlement, as the
prospect of being able to eradicate a decision would it be
unfavorable could well encourage the parties to postpone
settlement until after a decision has been rendered (U.S.
Bancorp Mortgage Co. v Bonner Mall Partnership [    U.S.
, 115 S.Ct.386,393])" (Paramount Communications v Gibraltar
Casualty Co., 212 AD2d 490, 490-491; 623 NYS2d 850).

This logic is persuasive in this case especially
considering the lack of guidance concerning, the "Internet"
prior to the Court's decision.  In other words, the Court
finds that this is a developing area of the law (in which
it appears that the law has thus far not kept pace with the
technology) so that there is a real need for some
precedent.  To simply vacate that precedent on request
because these two parties (or this Plaintiff) has lost
interest or decided that the litigation would be too costly
or time consuming would remove the only existing New York
precedent in this area leaving the law even further behind
the technology.

Turning then to the issue of renewal or reargument, it is
clear beyond question that this is a motion for renewal.

"A motion to reargue is based on no new proof; it simply
seeks to convince the court that it was wrong and ought to
change it's mind.  The motion to renew is based on new or
additional proof not used the first time around." (Siegel,
New York Practice, Second Edition, 254).

By this standard, there can be no doubt that this is a
motion for renewal rather than reargument.  Indeed,
PRODIGY's counsel, in his supporting affidavit refers to
PRODIGY's failure to provide this "new" information on the
original motion as an "oversight" (Affidavit of Martin
Garbus, Esq., sworn to July 6, 1995 para.2, p.1).

Indeed, an examination of the original papers in comparison
with the renewal papers reveals a number of drastic
differences.  For example, PRODIGY's former employee
Willard McDowell has submitted an Affidavit upon this
application in which he now states that when he answered
Plaintiffs' counsel's questions at a deposition concerning
the Board Leaders he (McDowell) was "speculating"
(affidavit of Willard McDowell, sworn to July 5, 1995,
para.10, p.3).  Similarly, Jennifer Ambrozek, PRODIGY
"Manager of Bulletin Board Communications" submits, upon
renewal, her Affidavit concluding (inter alia) that upon
the prior motion, the Court "was given the false impression
that Prodigy possesses and exercises significant editorial
control and judgment over the content of its bulletin
boards."  (Affidavit of Jennifer Ambrozek, sworn to June
30, 1995, para.2, p.1).  Neither Mr. McDowell nor Ms.
Ambrozek submitted anything to the Court in opposition to
the original motion notwithstanding the fact that portions
of their deposition transcripts were appended by Plaintiffs
to the original moving papers.  There has been no
explanation for the failure to include an affidavit from
Mr. McDowell or Ms. Ambrozek on the original application.

"In support of a motion to renew pursuant to CPLR 2221, the
moving party must show new facts as well as a justifiable
excuse for not placing such facts before the Court in the
first instance (see, Matter of Barnes v State of New York,
159 AD2d 753, lv. dismissed 76 NY2d 816, 819; Foley v
Roche, 68 AD2d 558, 568)."  (Zebrowski v Kitchens, 172 AD2d
972, 973).

While it is indeed true that the requirement for showing of
a justifiable excuse is a "flexible" one, (i.e., the Court
has some discretion in this regard) (see, Saferstein v
Stark, 171 AD2d 856; Orenland v Miller Minuteman Constr.
Corp., 133 Ad2d 816, 817-818; Sciascia v Nevins, 130 AD2d
649, 650; Albanese v Village of Floral Park, 128 AD2d 612,
614), in this case, it is clear that the "new" facts set
forth by PRODIGY were well known to it at the time of the
original application.  While this, standing alone, is
insufficient to preclude an exercise of discretion to
permit reargument, there has been absolutely no explanation
offered for the failure to include these facts in the
original opposing papers.  Before the Court can exercise
its discretion, it must be presented with some reason to do
so.  "Renewal is by no means guaranteed and 'is not a
second chance freely given to parties who have not
exercised due diligence in making their first factual
presentation' (Matter of Beiny, 132, AD2d 190, lv.
dismissed 71 NY2d 994; see Gulledge v Adams, 108 AD2d
950)."  (Matter of Barnes v State of New York, supra,
p.754).

Accordingly, in the absence of an acceptable excuse for the
failure to include this new proof in the original motion
papers, PRODIGY's motion for renewal is denied.

Dated: December 11, 1995

Mineola, NY

J.S.C.