1/24/97 -- 12:31 PM

America Offline,0339

NEW YORK (AP) - New York State today threatened to sue America Online unless the nation's largest online computer service stops offering consumers a service that it has failed to reliably deliver.

The legal action would be the first by a state against America Online in response to a rising tide of complaints by consumers about their difficulty in getting the online access they paid for.

A new pricing plan that charges customers $19.95 a month for unlimited access has strained AOL's network, creating long delays in going online, busy signals and other frustrations.

The threat comes one day after representatives of 20 state attorneys general, including New York's, met with America Online in Chicago to try to address the complaints about spotty service. Just Thursday, AOL was hit with a breakdown in its e-mail, following two technical glitches last week.

Attorney General Dennis Vacco said he notified AOL that a lawsuit alleging ``false advertising'' and ``repeated and persistent fraud'' would be filed by next Thursday unless the company comes up with a written plan to answer the complaints, including halting advertisements of the monthly plan.

Vacco also said he wants AOL to give customers refunds of their fees because the access they've paid for hasn't been unlimited.

AOL did not immediately return a phone call seeking comment.

``Consumers that want a refund should be able to get a refund,'' Vacco said in a press conference at his downtown Manhattan office. ``You don't sell 10,000 tickets to a theater that you have only 3,000 seats for.''

The lawsuit also would seek unspecified damages and restitution. Vacco said he expects other states to also file suit if AOL fails to answer their concerns.

Vacco's office has received about 100 complaints from AOL subscribers consumers in recent weeks. New York state has about 600,000 of America Online's 8 million subscribers.

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