Plaintiff's cause of action for continuing trespass was properly sustained, notwithstanding that the encroaching excavation and backfill on plaintiff's property supporting the retaining wall on defendant's property was done with plaintiff's permission ( see, Wheelock v. Noonan, 108 N.Y. 179, 183), and that the work was intended to be permanent ( see, 509 Sixth Ave. Corp. v. New York City Tr. Auth., 15 N.Y.2d 48, 52), there being issues of fact whether the work violated applicable regulations ( see, Cranesville Block Co. v. Niagara Mohawk Power Corp., 175 A.D.2d 444, 446), or was completed in a manner so negligent as to create a "`substantial certainty'" of harm ( Phillips v. Sun Oil Co., 307 N.Y. 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 A.D.2d 272, 276), and in any event appears to be without merit in the absence of proof that defendant's use of plaintiff's property was hostile ( see, Boumis v. Caetano, 140 A.D.2d 401, 402).
Concur — Rosenberger, J.P., Ellerin, Wallach and Tom, JJ.