Guccione v. Hustler Magazine, Inc. (2d Cir. 1986) 800 F.2d 298, dealt with the issue of whether, in a defamation action, past conduct of a plaintiff can establish the truth of a statement about the plaintiff that is expressed in the present tense. In Guccione, supra, 800 F.2d 298, a publisher published an article that included the language, " 'Considering he is married and also has a live-in girlfriend ... .' " ( Id. at p. 299.) In fact, Guccione had divorced his wife four years before the article was published. The plaintiff, a rival publisher, contended that "because the statement was phrased in the present tense it accused him of committing adultery at the very time the statement was printed" ( id. at p. 301), and therefore it was false because he was divorced at the time the statement was made. The court said there was no evidence from which the statement "may fairly be read to mean that the marriage and the cohabitation existed simultaneously only at a moment or brief interval just prior to the article's publication. The statement can be read to mean only that the marriage and the cohabitation existed simultaneously throughout an undefined span of time that included the period immediately prior to publication." ( Id. at p. 302.) The court concluded, "On this reading, the undisputed facts established the defense of substantial truth as a matter of law." (Ibid.) The court also relied upon the concept that a plaintiff can be "libel-proof." ( Guccione, supra, 800 F.2d at p. 303.) The court in Guccione, supra, 800 F.2d at pages 303-304, stated: "This is not to suggest that every person guilty of even a single episode of marital infidelity has no recourse if, years after the fact, he is accused in print of currently committing adultery. However, the undisputed facts of this case--the extremely long duration of Guccione's adulterous conduct, which he made no attempt to conceal from the general public, and the relatively short period of time since his divorce--make it fair to say that calling Guccione an 'adulterer' in 1983 was substantially true. Of course, 'former long-time adulterer' would have been more precise. But on the facts of this case, to require such a level of accuracy is unreasonable. The article labels Guccione an adulterer. The average reader would understand that term to include a man who unabashedly committed adultery for thirteen of the last seventeen years and whose adulterous behavior ended only because his wife ultimately divorced him. Where, as here, 'the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.' "