Nearly a year after a falling piece of a building facade killed a New York City architect, her family is locked in a legal battle against the city.
Loved ones claimed negligence led to Erica Tishman's wrongful death, but the city argued the victim herself might have been at fault. Benedict Morelli, the attorney for Tishman's widow, filed a lawsuit against the owners of 729 7th Ave. and the city in August but he says the response from the city so far is a slap in the face.
In response to the suit, the city's "affirmative defense" is that Tishman's "culpable conduct caused or contributed, in whole or in part, to his/her/their injuries."
The argument went on to say Tishman “knew or should have known in the exercise of due/reasonable care of the risks and dangers“ and she “failed to use all required, proper, appropriate and reasonable safety devices.“
Reacting to the city's response, Morelli was astonished. "That 'she assumed the risk,' what?" he said. "Now I know nobody, even the city, can’t be that stupid."
"A woman is now dead and three children lost their mom," Morelli said.
Pedestrians who were on Wednesday walking past the building in Midtown Manhattan where Tishman was struck and killed last December say they don't understand the argument either.
"I someone gets hurt now it’s gonna be like it’s your fault for walking," said one pedestrian. Another believed the city should take responsibility.
An I-Team record search found that the building owner, Himmel + Meringoff Properties, LLC, were issued two violations last year for damaged terra cotta. They paid the fine but didn't fix the problem.
Records show the building had been labeled unsafe in April, but the building owner didn’t install anything to protect pedestrians, until after Tishman’s death.
In a statement, a company spokesperson told the I-Team that there were plans to repair the façade and a contract was awarded for the work. “A shed was scheduled to be installed when the work began.”
A spokesman from the Buildings Department had said that the property owner is responsible for “installing appropriate pedestrian protection measures" but Morelli says the city should have done more to ensure safety.
"The city is supposed to follow up. They follow up and see on you haven’t fixed the emergency problem," said Morelli. "'We’re gonna build the shed and we’re gonna make you pay for it.' That’s what the city can and should have done in this case."
The building's owner claimed the fix was not done because they were waiting for city approval to perform the work.
In an emailed statement, the city's legal department told NBC New York that affirmative defenses are regularly raised by the city but did not offer clarification about why the defense was specifically used in this case.