Fifty-Five Corp. v. 10 West 66th Street Corp.

—Order and judgment, Supreme Court, New York County (Elliott Wilk, J.), entered January 26, 1995 and February 21, 1995, respectively, which insofar as appealed from, denied defendant’s motion for summary judgment dismissing plaintiffs cause of action for continuing trespass, unanimously affirmed, with costs. Plaintiff’s cause of action for continuing trespass was properly sustained, notwithstanding that the encroaching excavation and backfill on plaintiffs property supporting the retaining wall on defendant’s property was done with plaintiffs permission (see, Wheelock v Noonan, 108 NY 179, 183), and that the work was intended to be permanent (see, 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48, 52), there being issues of fact whether the work violated applicable regulations (see, Cranesville Block Co. v Niagara Mohawk Power Corp., 175 AD2d 444, 446), or was completed in a manner so negligent as to create a " 'substantial certainty’ ” of harm (Phillips v Sun Oil Co., 307 NY 328, 331). Defendant’s claim of a prescription easement is improperly raised for the first time on appeal (see, Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276), and in any event appears to be without merit in the absence of proof that defendant’s use of plaintiffs property was hostile (see, Boumis v Caetano, 140 AD2d 401, 402). Concur—Rosenberger, J. P., Ellerin, Wallach and Tom, JJ.