IN RE APPL. I.G. SECOND GEN. PART

The Commissioner's order had a rational basis and was not arbitrary and capricious, and, accordingly, may not be judicially disturbed (see,Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 230-231; Greystone Mgt. Corp. v. Conciliation and Appeals Bd., 94 A.D.2d 614, 617, affd 62 N.Y.2d 763).

Contrary to petitioners' contention, the tenant's Fair Market Rent Appeal was not untimely. The tenant's time to challenge the initial rent did not begin to run because the notices required of petitioner landlords to trigger the running of the applicable 90-day limitations period, even if properly served upon the tenant, were defective (see, Matter of E.G.A. Assocs., Inc. v. New York State Div. of Hous. Community Renewal, 232 A.D.2d 302).

Although petitioners contend that they were entitled to a first rent with respect to the subject apartment, the Commissioner properly found that the glass enclosure adjacent to the apartment bedroom on the roof terrace already allocated to the subject apartment did not constitute such a substantial alteration as to entitle the landlord to a first rent (see, e.g., Roker Realty Corp. v. Gross, 163 Misc.2d 766).

Respondent, in determining the fair market rental of the subject apartment, properly declined to utilize the evidence of purportedly comparable apartments offered by petitioners since there was a rational basis for respondent's determination that the apartments cited as comparable by petitioners were not in fact comparable (see, Matter of Axelrod Mgmt. Co. v. Conciliation Appeals Bd., 95 A.D.2d 691).

We have considered petitioner's remaining arguments and find them unavailing. There is nothing to warrant a remand.