100 Die a Day project

A photograph of the late Jessica Gentile's grave adorns the front of a wooden gravestone set up in the front lawn of Cayuga Community College's Auburn campus during a 2014 awareness event. Gentile died of a heroin overdose in 2013.

A lawsuit against an Auburn man who served prison time for a conviction related to an Auburn woman's overdose death was dismissed Oct. 8 by an appeals court.

Matthew M. Malenick was convicted in March 2014 for delaying emergency services to 25-year-old Jessica Gentile, who died of a heroin overdose in his residence on May 9, 2013.

Cayuga County District Attorney Jon Budelmann said in 2014 that Malenick had called an ambulance about three hours after he became aware of Gentile's medical distress and hid evidence of the pair's heroin use. Malenick pleaded guilty in Cayuga County court to third-degree criminal sale of a controlled substance, a felony, and third-degree falsely reporting an incident, a misdemeanor.

Judge Mark Fandrich sentenced him in April 2014 to five years in prison. Malenick was released from custody on Nov. 15, 2018, according to the state Department of Corrections and Community Supervision inmate database.

Jessica Gentile's mother, Michele Gentile, filed a civil complaint in January 2015 that named both Matthew Malenick and his parents, Mark and Jill, as respondents. It listed negligence, wrongful death and loss of services as causes of action against the defendants.

"In consequence of said injuries and permanent loss of her daughter, plaintiff, Michele Gentile, has been deprived of the society and companionship of her daughter, and her comfort and happiness has been impaired, and this deprivation and impairment is permanent," the lawsuit reads.

It also notes that Michele had to "incur significant expenses" because of her daughter's death. She asked to collect damages "in an amount above the jurisdiction limits" of the court that would include the costs accrued by the bringing the complaint, but did not specify an exact amount.

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In response to the lawsuit, Malenick in May 2018 asked the state Supreme Court for a summary judgment to dismiss the complaint. His request for a summary judgment filed with the court argued that Gentile's family cannot pursue damages against Malenick for their daughter's participation in "dangerous, criminal acts," a reference to her illegal drug use.

Malenick also claimed that "there is no factual support for plaintiff's claim that Malenick was negligent in failing to contact 911 earlier" because, it claims, he found Gentile after she had been dead for at least an hour.

Fandrich denied Malenick's request in a decision issued in September 2018, which allowed the case to move forward. He granted a separate summary judgment for Malenick's parents in August 2018, dismissing the complaint against them.

Malenick appealed Fandrich's decision, and on Oct. 4, the state Appellate Division-Fourth Department unanimously reversed Fandrich's order and dismissed the case.

The appeals court decided that Gentile's family was not able to recover damages from Malenick, citing Gentile's "voluntary participation in dangerous, criminal acts." The decision states that Malenick submitted expert opinion evidence and his deposition testimony to establish that Gentile's death resulted from the use of heroin and several prescription drugs. That activity, which "unquestionably" constitutes serious criminal conduct, was the direct cause of Gentile's death, the appeals court wrote.

The Gentile family is considering their options for appealing to the state's highest court, said attorney Peter Littman of Littman & Babiarz Law Office in Ithaca, who is representing the family in the civil suit. 

"This case is on the cutting edge of the law of personal responsibility for the welfare of those placed in danger by the actions of another responsible party," Littman wrote in an emailed statement to The Citizen. He said the appellate court's decision prevents the Gentiles from presenting evidence and testimony to a jury.

"Judge Fandrich was right in refusing to dismiss this case simply because the victim committed the illegal act of drug use, especially because the defendant had obtained and helped administer the drug to her. The appellate division decision ratifies such callous and irresponsible behavior by the defendant," Littman said.

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Staff writer Mary Catalfamo can be reached at (315) 282-2244 or mary.catalfamo@lee.net. Find her on Twitter @mrycatalfamo.