is an appeal of the outstanding the district court held that hack did not have a special interest in the funds at issue here and therefore hacking lacked standing because quote hack is not expressed be designated as a beneficiary of h determine whether haq has a special interest year conflicts with new york law and constitutes reversible error the seminal court of appeals case concerning this issue ok that is the case that there is discretion and therefore under another rule under the new york exception that they made to only the attorney general has standing that you that dismissal but the discovery was in the let me just make myself clear isn't this really a question of new york policy of wherever new york wants to because a discretion is only put in for federal tax purposes and i have no idea and the new york cases don't really tell me wherever new york waltz is exception to us but i don't know why that doesn't come earlier even yes your honor i think this would be an appropriate case to certify to the court of appeals however i'm not sure it's necessary because if you look at the decision in alcohol and i want to quote the language to make sure i get it right a particularly group of people has a special interest in funds held for a charitable purpose as when they are entitled to a preference in a distributions of such funds and the class of potential beneficiaries are sharply defined and limited in number of special interest exist so how do we know that their limited number i understood it had dyson it's related organizations received donations for all kinds of purposes and which may include other beneficiaries ultimately i don't think that's why people foundation there that creates a special in very limited class what has been concerned me here is that there may be numerous other designees of prospective and that's precisely why the attorney general is designated by the legislature to protect beneficiaries and to make sure that trust and trust in this ations are behaving in the public interest and are protecting don't wars  ours are part of this suit right who's claim that they've been misled and have you applied to the attorney general to for protection and has that been dismissed you cannot apply to the attorney general but to be clear i want to make it very clear to this court what funds we are seeking we are not sitting all of harasses general funds it's only funds that are specifically donated by donors i pointed my point is that there may be numerous other beneficiaries who interest and my understanding is that her dasa with its related medical organization and so on is just such an or in a zation that will have don't ors with particular projects either in israel or here that is want to use a docile which has staying power which they can be sure will be there in ten years or fifteen years i don't see what distinguishes hack from those other potential beneficiaries and that's why i'm having trouble i want to set up a fund in a damning fund for scholarships at hack they enter into an agreement which specifically says set up and send the money to hack for scholarships to be used for students a mrs goldberg your money is going to be used for hacked if we for example have one another isn't that precisely the kind of promise though that the attorney general is positioned and has to do to enforce and has a duty to enforce a lot of of don't wars make such requests or even enter into don't it if agreements of that sort have you can you tell me that there are not none others other my question my question is my belief is that there are many other such entities and or individuals who have expectations of receiving a preference in money funneled through had dasa in you need to show that you are at a special class that's why traditionally people looked at the foundational documents where there's such a tight interaction between one organization and the other that has caused the courts to recognize standing so tough so tell me again why it was different with respect to the foundational documents we cite in our briefs court decisions from the division of the new york state court as well as the new york state supreme court where it's not just in the foundational documents where special interest can be created a special interest can be created in other ways as well and ultimately you need to look back at the moment without a referral and that's what i was talking about with the so are versus columbia just that discretion of that sword is enough so that the arco exception doesn't apply in others a supreme court decision in new york which goes any other way confusing your honour's original assumption that we should certify this however i do think that trust go and swift the supreme court case that your honor was just referring to i believe both stand for the proposition that also what we what you need to look at is who has a special interest in these funds and if there is a narrow group of people who can make claim to them in this case we submit that that would be hacked and again that's something that had os itself has acknowledged for example we say to the notes that are charter yeah but other courts overman that appellate division have looked to what was in the will have look to other things so that it's hard for me to see that this appellate division decision so extraordinary you need to bend it a little so what happened to trust is the governor then governor appointed steven berger as kind of the czar of health care and he went around the state closing hospitals to make the delivery of health care services more economical schenectady county at two hospitals one saint clarence one ellis hospital he close in clare's it shut its facility ellis took over the facility under this mandate operations and everything else case they found they talked about purpose but the charter notion is something that is in one appellate division case and that is vats sufficient to bind us to make clear what the law in new york let me say there are other compelling reasons to locate the foundational document as a source of the this interest i think your honor expressed some of those i've had a lot of experience in reviewing and elements of large and small clients to seed of a complying with the terms of the gift instruments you're talking about in many cases large research institutions universities that could be seen to create anything foundational interest and it would be a nightmare to have to parse through that and often they're very inaccurate and incomplete the foundational interest in  governing instruments is always available man i just ask a technical question this case is in federal court because of diversity as i take it who brought it into federal court it was the plaintiff you technique in terms of that record we can consider this was dismissed for want of standing right and was there any hearing below or any fact finding about now nothing so there we just have the allegations of the complaint hat are we to do with state cases that you tell us are wrong i mean we're a federal court we're supposed to try to figure out what new york law is and you come in and tell us this case in new york is right and this case in new york is plain wrong and you know i am quite ready to say that most of new york law is wrong but i don't know have that or have any particular basis or i think the trial tresco case does the right the transco case looks to the contract as to what but it seems to me again those were yes those are special circumstances but these could be special circumstances as well have you signed and circumstances because mr is talking simply about gift instruments wills and what's concerning me though is that as my questions indicated i would expect that a factual development where any to charitable funds that it holds and to establish standing and reject the attorney general's you know so position their position is so enforcer your adversary needs to show that they're a special class an exceptional class seems to me that they can look at a number of different documents to do that but we don't have a record that enables us to go very far to show how they are distinguished from other people so it may turn out that with some factual development on this question they are they do not fall within the our cooker of your class arse exception or it may turn out that on the contrary they're more like trust but we can't tell on this record seems to me to trust go cases are so obviously unique there's not a commission every five or ten years that mandates closing of hospitals and that resulted in one hospital surviving in fact that you can have one organization that is superseded by another i problems if you are going to say wills gift instruments and other documents can you have leisure why shouldn't why should the district court hold a hearing on the standing issue and to take facts from take evidence on the question what says don't it if constituency is like to gable to make a ruling about whether this is an exceptional class or not there is a record in this proceeding i think you've seen it it's about this th calibration noted to make a gift or not that it's not just you know mere words that's in fact the intention and that's a requirement wouldn't it be of interest to an organisation like that gets a great deal of money from a great many people and gives it usually all vova reason a statement of total discretion exactly as these people suggest to  what it means to have discretion in vista tax situation when they really want to be attorney general and when they want to allow suits wouldn't that really i mean apart from vis case be something that would be useful to you to know as well hard to disagree with that is a matter of principle but i don't think this case supports that i think our saying and no i understand you think you can win va case regardless but i'm just asking more generally isn't this here an area where new york law is complicated you look to new hampshire which has been saying official law and they have taken some quite clear decisions on it so had new hampshire knows what it's doing wouldn't it be better just to get that if new york wants of course in new york there's a lot they can always say no flies in the face of drugs myers caution in his alcohol grave your opinion  there's a problem of litigation i think this is a perfect example of it we've got to go through to the nd circuit and we've got to go to the court of appeals it is too bad that new york doesn't allow district courts to i agree that we were not given an opportunity to create a full record of the district court level specifically because the district court decided that the only thing that mattered were to us as chartering documents and closed the inquiry there with respect to tresco i just want to make one point to your hon question earlier about the attorney general it's important to note that in trust the attorney general was a party and the attorney general objected to the intervention and said no no this is my sole discretion and over the attorney general's objection an over the respon the surrogate's court over the intervene or to come in to get those for circumstances very unlike yours where there was a one to one there was a successor organization that exceeded to all of the rights of the prior hospital not to trust though i don't i don't believe the incorrect because it's a matter of court just as a technical government or there was no merger i do think that the hospital became the only hospital that was servicing the county but as a matter of corporate law there they were not connected to the prior hospital there was a merger but the court said they assumed pursuant to this agreement they assumed the sole responsibility but in that event we don't have to go there it's that point is i guess it's it's a little bit unclear what the circumstances were right i think that's the point of all this let's all right thank you