dissent and vote to affirm in the following memorandum by Casey, J. Casey, J. (dissenting). In their third-party action for declaratory relief, defendants, as third-party plaintiffs, allege without contradiction that they temporarily moved in the premises of defendant Nelda Davis’ mother (the named insured) shortly after the mother’s death in September 1982 to guard against vandalism, and that they, as the owners of the dog that bit plaintiff Brenda Brink (hereinafter plaintiff), qualify as insureds within the homeowner’s policy which the mother had with third-party defendant insurance company. The disclaimer of third-party defendant is based on the fact that the dog was not owned by the mother and that defendants cannot be considered "insureds” under the policy.
The policy specifically defines an "insured” as a legal representative of the deceased or other person having proper, *721temporary custody of the covered property. Nelda Davis met both requirements since she was the legal representative of the mother and her custody of the insured property was allegedly temporary, which has not been shown to be otherwise. Contrary to the majority’s view, even if Nelda Davis became the owner of the property upon her mother’s death, she could still retain custody on a temporary basis. If the mother in her lifetime owned the dog that caused plaintiffs injuries, she would have been covered. There is therefore no reason to exclude defendants, who fall squarely within the policy definition of "insured”.
Additionally, there can be little dispute that the "occurrence” is a covered risk, for the policy specifically applies to bodily injury when it is caused by an animal owned or in the care of the insured.
The order of Special Term which, inter alia, granted defendants’ motion for summary judgment in the third-party action should be affirmed, and, accordingly, we dissent. [125 Misc 2d 1021.]