Rose, J.
Before the new trial, Brome moved to disqualify petitioner and for the appointment of a special prosecutor based on the possibility that petitioner may be called as a witness at trial concerning the circumstances surrounding the discovery of the incriminating slip of paper and the chain of custody of the coat. Petitioner agreed not to serve personally as trial counsel at the new trial, but he opposed disqualification of his entire staff of seven assistants. When respondent County Judge (hereinafter respondent) granted Brome's motion, petitioner commenced this proceeding pursuant to CPLR 506 (b) (1) seeking a writ of prohibition that would, inter alia, vacate respondent's orders and enjoin the appointment of a special prosecutor. Since we find that respondent had statutory authority to disqualify petitioner and appoint a special prosecutor, we reject petitioner's application without reaching the merits of the disqualification.
As we have previously recognized, "[t]he remedy of prohibition is available to prevent a judicial officer `from proceeding or threatening to proceed without or in excess of [his or her] jurisdiction' * * *" (Matter of Cloke v. Pulver, 243 A.D.2d 185, 188 [citations omitted], quoting Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435). However, County Law § 701 (1) gives superior criminal courts the authority to appoint a Special District Attorney "[w]henever the district attorney of any county and such assistants as he or she may have * * * are disqualified from acting in a particular case", and we have held that "the question of the correct standard to be applied in disqualifying a prosecutor presents a question of law not reviewable by a CPLR article 78 petition in the nature of a prohibition" (Matter of Reina v. Coccoma, 256 A.D.2d 988, 990; compare, Matter of Shumer v. Holtzman, 60 N.Y.2d 46, 51-52; contra, Matter of Dillon v. Kowtna, 270 A.D.2d 219). Since, respondent did not exceed his statutory authority to appoint a special prosecutor and petitioner contends only that respondent improperly applied the standard for disqualification in deciding Brome's application, prohibition does not lie.
Mercure, J.P., Crew III, Peters and Carpinello, JJ., concur.
ADJUDGED that the petition is dismissed, without costs.