It's dealer discretion. I took mine in with 54k but a month out of warranty. I also called infiniti customer care and lodged a formal complaint stating that I ran out of gas in a snow storm in the middle of nowhere due to this issue and that if my wife and child would have been in the car a lawyer would be contacting them and not me.
I told them which dealer i was taking it to, they then contacted the regional infiniti rep that covers that area, and she worked with the service manager at the dealer to get this replaced and they fully covered it. All I paid was $45 bucks for an oil change.
I also threw out that this seems to be a common problem and that due to the severity of the problem and the chance of running out of gas in the middle of traffic and causing an accident, this could be considered gross negligance. That pretty much did what ever it took to make me happy. I am not an a$$ and thus did not approach this in a mean way, more or less was informative about the possible lawsuit they could have on their hands.
Reference the thread I started if you would like to show proof of the common issue. Also add yourself in there if you wouldn't mind.
zerothread/316682