DECISION ORDER
ORDERED that the appeal from the order dated December 11, 2002, is dismissed, as that order was superseded by the order dated May 13, 2003, made upon reargument; and it is further,
ORDERED that the order dated May 13, 2003, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
In support of their motion for summary judgment dismissing the complaint, the defendants established that their two dogs lacked vicious propensities (
see Saboe v. Splish Splash at Adventure Land, 272 A.D.2d 315;
Lugo v. Angle of Green, 268 A.D.2d 567). Furthermore, the defendants established lack of knowledge of a propensity on the part of their two dogs to jump on strangers (
see Althoff v. Lefebvre, 240 A.D.2d 604;
cf. Goldberg v. LoRusso, 288 A.D.2d 257) or to cause harm if left unrestrained (
see Ballard v. Campbell, 304 A.D.2d 780;
Hyde v. Clute, 235 A.D.2d 909;
Nilsen v. Johnson, 191 A.D.2d 930).
In opposition to the motion for summary judgment, the plaintiffs failed to come forth with evidence sufficient to raise a triable issue of fact. The plaintiffs' allegation that the defendants were negligent because they violated the dog control ordinance of the Town of Wappinger was improperly raised for the first time in opposition to the motion. Accordingly, the plaintiffs could not rely on this new theory to defeat the defendants' motion for summary judgment ( see Araujo v. Brooklyn Martial Arts Academy, 304 A.D.2d 779, 780; Gustavsson v. County of Westchester, 264 A.D.2d 408; Alvarez v. Lindsay Park Hous. Corp., 175 A.D.2d 225).
ALTMAN, J.P., S. MILLER, McGINITY, ADAMS and MASTRO, JJ., concur.