A New York judge has declined to reverse an earlier ruling that the Prodigy Services Company could be held liable for comments posted on its bulletin boards by subscribers to the online service.

Prodigy had wanted to reargue a multi-million dollar libel suit filed against it by Stratton Oakmont Inc., an investment bank.

The bank withdrew its lawsuit in October but Prodigy still wanted the chance to persuade the judge to reconsider his order that Prodigy could be held liable because it acted as a publisher of information, not just as a passive carrier.

In his ruling, the judge cited "a real need for some precedent" in cyberspace law.

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.