Decision and order The plaintiff has moved seeking to disqualify defendant’s counsel. The defendant opposes the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. In this action the plaintiff alleges that Somerset Production Company LLC amended its operating agreement to add a company half owned by O’Neill called Berea Oil and Gas Corp., which effectively allowed O’Neill to dominate Somerset. The complaint alleges O’Neill diverted Somerset’s funds for his own personal use. There is no dispute that defendant’s counsel Barclay Damon LLP represented Somerset in 2015 during the time of the defendant’s alleged misappropriation of Somerset’s funds. Thus, the plaintiff asserts that “Barclay provided legal services to both Defendant and SPC in connection with several transactions that go to the heart of Plaintiff’s allegations” (see, Memorandum of Law, page 3 [NYSCEF Doc. No. 191]) and must be disqualified since an obvious conflict has presented itself. A memorandum prepared by Barclay in September 2015 concerning a well owned by defendant is the primary basis seeking disqualification. That well is the subject of some of the allegations in the complaint. Paragraphs 29-37 of the complaint allege that an entity owned by the defendant called Cottonwood Operating Corp., was given a permit by the United States Environmental Protection Agency to conduct drilling operations in Pennsylvania. The complaint alleges the defendant charged Somerset $250,000 for the use of that permit and that the fair market value of the permit was below that amount. Further, and in any event, the complaint alleges the defendant never even relinquished Cottonwood’s rights in the well and that Somerset overpaid for something it never even enjoyed. Thus, these allegations further support the contention that defendant misused his role at Somerset and misappropriated Somerset’s assets. The plaintiff asserts that Barclay was counsel to transactions conducted by the defendant and his corporation Cottonwood and that disqualification is imperative to maintain the integrity of the lawsuit. Conclusions of Law It is well settled that a party in a civil action maintains an important right to select counsel of its choosing and that such right may not be abridged without some overriding concern (Matter of Abrams, 62 NY2d 183, 476 NYS2d 494 [1984]). Therefore, the party seeking disqualification of an opposing party’s counsel must present sufficient proof supporting that determination (Rovner v. Rantzer, 145 AD3d 1016, 44 NYS3d 172 [2d Dept., 2016]). The former client conflict of interest rule is codified in the New York Rules of Professional Conduct, Rule 1.9 (22 NYCRR §1200.0 et. seq.). Specifically, Rule 1.9 (a) provides: “a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client…” (id). Although a hearing may be necessary where a substantial issue of fact exists as to whether there is a conflict of interest (Olmoz v. Town of Fishkill, 258 AD2d 447, 684 NYS2d 611 [2d Dept., 1999]) mere conclusory assertions are insufficient to warrant a hearing (Legacy Builders/Developers Corp., v. Hollis Care Group, Inc., 162 AD3d 649, 80 NYS3d 59 [2d Dept., 2018]). Thus, a party seeking disqualification of counsel must demonstrate that: (1) there was a prior attorney client relationship; (2) the matters involved in both representations are substantially related; and (3) the present interests of the attorney’s past and present clients are materially adverse (Moray v. UFS Industries Inc., 156 AD3d 781, 67 NYS3d 256 [2d Dept., 2017]; see, also, Falk v. Chittenden, 11 NY3d 73, 862 NYS2d 869 [2008]; Jamaica Pub. Serv. Co. v. AIU Ins. Co., 92 NY2d 631, 684 NYS2d 459 [1998]). Once the moving party demonstrates that these three elements are satisfied “an “irrebuttable presumption of disqualification follows” (McCutchen v. 3 Princesses and A P Trust Dated February 3, 2004, 138 AD3d 1223, 29 NYS3d 611 [2d Dept., 2016]). Thus, in interpreting the prior rule DR 5-108 (A) (1) which is substantially the same in import, disqualification would be proper where it is established that there is a substantial relationship between the current litigation and the prior one (Kuberzig v. Advanced Dermatology, P.C., 260 AD2d 548, 688 NYS2d 596 [2d Dept., 1999]). Thus, concerning this substantial relationship prong, in Spano v. Tawfik, 271 AD2d 522, 705 NYS2d 659 [2d Dept., 2000]), the court held disqualification improper where the plaintiff’s attorney suing defendant for breach of contract once represented the defendant in a trademark infringement action when plaintiff and defendant were the sole shareholders of the corporation that settled that trademark action. The court noted there was insufficient evidence the matters were substantially related. Indeed, for the two matters to be viewed as substantially related they must be ‘identical to’ each other or ‘essentially the same’ (Lightning Park, Inc., v. Wise Lerman Katz, P.C., 197 AD2d 52, 609 NYS2d 904 [1st Dept., 1994]). The plaintiff argues that Barclay must be disqualified because “plaintiff’s causes of action, in part, allege that Defendant’s wrongful conduct involved unauthorized transaction (s) between Cottonwood and SPC in connection with SPC’s acquisition of the Brandt Well, the benefits accruing to Defendant and detriments accruing to SPC as a result of same, and the transaction(s) by which Defendant disposed of Cottonwood and/or the well. Barclay provided legal services to SPC (and apparently Defendant) to effectuate these transactions. Barclay also drafted the Memorandum for SPC which, as an evaluation of SPC’s environmental liability regarding the Brandt Well, would also relate to Plaintiff’s allegations regarding the true ownership of the well or its permit” (see, Memorandum of Law, page 14 [NYSCEF Doc. No. 191]). In reply the defendant further asserts that “the ultimate sale of the well, handled by Barclay, with no involvement from any member of SPC other than Defendant, is undoubtedly related to the aforementioned issues” whether the defendant breached his duty to Somerset regarding the well (see, Memorandum in Reply, page 5 [NYSCEF Doc. No. 213]). However, it is difficult to isolate the precise conflict which demands disqualification. As noted, the complaint alleges that the defendant overcharged Somerset for the use of a drilling permit an in fact did not even permit Somerset to enjoy the benefits of such a permit. Whether Barclay was counsel when the well was first purchased in 1987 is irrelevant to these allegations and do not present a conflict. Further, the nature of any unauthorized “transactions” are not explained and considering the allegations of misappropriation such transactions are not related in any way and are thus not relevant. Moreover, Richard Day an attorney with Barclay submitted an affidavit wherein he asserts that neither he nor the law firm has performed any work for Somerset since 2016 and that he did not perform any legal work concerning any of the allegations contained within the complaint (see, Affirmation of Richard Day,
