
    Arthur Waugh, as Attorney-in-Fact for C. Leonard Lapadula, Respondent, v. Firemen’s Fund Insurance Company, Appellant. Stetter & Levy, Defendants and Third-Party Plaintiffs, v. Continental Casualty Company, Third-Party Defendant.
   Order entered July 14, 1966, to the extent that it denied moving defendant’s cross motion for summary judgment, unanimously modified, on the law, to grant summary judgment to moving defendant, and otherwise affirmed, with $50 costs and disbursements to appellant. Concededly the one-year limitation for the bringing of this action on a policy of fire insurance has expired. Plaintiff, however, contended that defendant is estopped to assert the defense. The contention is based on the facts set out below. Plaintiff previously brought an action against the moving defendant on the same policy. The action was dismissed for failure to prosecute. Plaintiff appealed to this court. To excuse the delay plaintiff contended that he was induced to refrain from prosecuting the action by the insurance company’s fraud. The alleged fraud consisted of pleading that the hazard of the policy had been increased by allowing the premises to remain vacant and by examining the plaintiff before trial to establish the defense. The policy, however, had a rider which permitted the premises to be unoccupied. These contentions were fully explored on a motion to reargue the determination of this court, adverse to the plaintiff, on the appeal. It was then determined, on the basis of facts which then and now were not controverted, that no fraud was practiced on plaintiff. It therefore appears that plaintiff has failed to set forth any facts to support an issue of estoppel. Lacking such estoppel, the defense of limitations is unchallenged and defeats the action. Concur- — Botein, P. J., Stevens, Steuer, Tilzer and Rabin, JJ.  