Erica Tishman, a New York City architect who was killed on a city sidewalk late last year after being struck by a chunk of terra-cotta that fell from the facade of a 105-year-old high-rise in Manhattan’s Theater District, should be found responsible for her own death, according to a legal filing by the city’s Law Department in response to a lawsuit brought forth by the widower of Tishman.

Tishman, a 60-year-old mother of three, was walking near her own office building on the morning of December 18, 2019, when rubble rained down from a 17-story building at 729 7th Avenue at 49th Street as she passed below. A large piece of masonry hit Tishman on the head, fatally injuring her. As reported by the New York Times following the incident, Tishman was pronounced dead at the scene when paramedics arrived. No other pedestrians were injured.

The wrongful death and negligence suit filed in August against the city and the building owner claimed that the occurrence was preventable and, as noted by the New York Daily News, the building had racked up several violations with the Department of Buildings (DOB) regarding its cracked, debris-shedding exterior.

Yet in a new “affirmative defense” filing with the Manhattan Supreme Court, city attorneys argued that Tishman herself could be at fault simply by walking down a Manhattan sidewalk.

“Plaintiff(s) knew or should have known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the activity alleged,” the Daily News reported the Law Department as writing. “Plaintiff(s) voluntarily performed and engaged in the alleged activity and assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required, proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper, appropriate and reasonable steps to assure his/her/their safety.”

“That ‘she assumed the risk,’ what?” NBC flagship station WNBC reported Tishman family attorney Benedict Morelli as saying in reaction to the filing. “Now I know nobody, even the city, can’t be that stupid. A woman is now dead and three children lost their mom.”

When reached for clarification by the Daily News, the city Law Department noted that affirmative defenses are regularly raised to establish a potential legal argument for cases.

“This was a truly tragic incident. We raise affirmative defenses in tort cases to preserve and protect the city’s interests. The parties can discuss these issues during the litigation as more facts develop. We can’t comment further on this pending case,” a city spokesman said.

AN has also reached out to the DOB for comment and will update this story accordingly.

In addition to the Daily News’s reporting, WNBC found in its own investigation that building owner Himmel + Meringoff Properties, LLC, had received two violations from the DOB in 2019 regarding the structure’s facade. The fines were paid but repair work to fix the issue, as mentioned, didn’t commence until after Tishman’s death, which came several months after the building had been deemed unsafe. The civil suit filed by Tishman’s family casts blame on Himmel + Meringoff Properties for not taking swifter action to remedy the crumbling exterior of the building, which obviously presented a public safety threat, and the city for not more aggressively following up on the violations.

“Today’s lawsuit is not unexpected. The loss of Erica Tishman is a profound tragedy” read a statement provided by a spokesperson for Himmel + Meringoff when the suit was first filed this summer. “We have been working diligently with the New York City Department of Buildings since the incident to obtain the necessary plans and approvals required to perform the facade repairs.”

Facade-examining drones and an increased number of building inspectors dedicated to facades have been implemented or considered since Tishman was killed. Completed in 1916, the Neo-Classical office tower at 729th 7th Avenue, the Godfrey Building, was designed by architect Arthur Lewis Harmon who, along with his partners R.H. Shreeve and William F. Lamb, are behind numerous landmark New York City structures including the Empire State Building.

Active in numerous civic and charitable causes, Tishman, a graduate of the Harvard Graduate School of Design, was a vice president at Manhattan project management firm Zubatkin Owner Representation and partner at DeWitt Tishman Architects, a firm that worked extensively in Jersey City including on Trump Plaza. As neighbors told WNBC, she was known to be a “stickler for building safety.”